Inheritance Rights of Women in Agricultural Land

Inheritance Rights of Women in Agricultural Land

 

The clinching argument in favour of land titles to women is the stability and security it provides and the protection it affords from marital violence

Women’s importance in agricultural production both as workers and as farm managers has been growing in the last two decades, as more men move to non-farm jobs leading to an increased feminization of agriculture. Today 48 percent of all male workers are in agriculture as against 75 percent of all female workers, and this gap is rising. Further, an estimated 20 percent of rural households are de facto female headed, due to widowhood, desertion, or male out-migration. These women are often managing land and livestock and providing subsistence to their family with little male assistance. Hence agricultural productivity is increasingly dependent on the ability of women to function effectively as farmers.

However ownership of land is concentrated mostly in male hands in our patriarchal society. It has been estimated that in India, landownership in favour of women is not more than 2 percent (Agarwal 1995). Lack of entitlement to land (and other assets such as house, livestock, and so on) is a severe impediment to efficiency in agriculture for women cultivators because in the absence of title women cannot get credit or be entitled to irrigation and other inputs, especially technology. Women’s working on land without title has led to creation of a new form of Zamindari (landlordism), as their operation is divorced from ownership. It may be recalled that Zamindari was abolished some sixty years back on considerations of both efficiency and equity. The discrepancy between the ownership and operation of land was regarded as one of the basic maladies of agrarian structure that acted as a ‘built-in-depressor’. It led to not only inefficient utilisation of given scarce resources but also stood in the way of augmenting these resources. Thus in every state the policy of abolishing all intermediary interests and giving ownership to the actual operator on land was adopted soon after independence. Time is ripe now to do so for women farmers too.

In addition to improved production, the clinching argument in favour of land titles to women is the stability and security it provides, the protection it affords from marital violence, and the bargaining power it gives women in household decision making and in the labour market for wages. However without title to land, women are not recognized, even by the state, as clients for extension services or as candidates for membership in institutions such as co-operative societies.

Why land is important for women

- Land access can reduce a household’s risk of poverty, but for persistent gender inequalities land solely in men’s hands need not guarantee female welfare.

- Direct land transfers to women are likely to benefit not just women but also children. Evidence both from India and from many other parts of the world shows that women, especially in poor households, spend most of the earnings they control on basic household needs, while men spend a significant part of theirs on personal consumption, such as alcohol, tobacco, etc.

- Women with assets such as land have greater bargaining power, which can lead to more gender-equal allocations of benefits even from male incomes.

- Women without independent resources are highly vulnerable to poverty and destitution in case of desertion, divorce, or widowhood. In parts of western and northwestern India, not uncommonly, rural women even from rich families, deprived of their property shares when widowed, can be found working as agricultural labourers on the farms of their well-off brothers or brothers-in-law. The fate of deserted and divorced women is worse.

- Tenure security, and especially titles can empower women to assert themselves better with agencies that provide inputs and extension services.

- Women are often better informed than men about traditional seed varieties and the attributes of trees and grasses. If they had greater control over land and farming, this knowledge could be put to better use.

Land laws in post-Independent India

Before 1956 devolution of both acquired and inherited property was governed by the personal laws of the community. Although equal rights were granted to women in acquired property through the Hindu Succession Act of 1956, rights in inherited agricultural land were specifically exempted from the Act, and were made subject to tenancy and land reform laws of the states. In India, agrarian reforms through the 1950s and later took place at a time when gender equality was marginal to the policy agenda and women’s organisations lacked their current visibility. Hence, in most government land reform programmes and land transfers, women’s land rights remained a non-issue.

From the 1980s onwards gender equality was talked about, but restricted only to land distributed by government. The Plans called for titles to spouses in productive assets, houses, house sites and directed state governments to register government allotted wasteland/ceiling surplus lands in joint names, but remained silent on the inequities in devolution laws as regards women. However, the potential of wasteland distribution in future is extremely limited, as the cultivable waste has already been allotted or encroached. Hence the main source of land title in the years to come is not through distribution of government land or leasing, but through inheritance. The main source of tenure has always been through inheritance, and will be more so in future, and therefore we need to examine the tenancy laws and the extent of discrimination inherent in such laws.

Tenurial laws for agricultural land

As already stated, the Hindu Succession Act left the question of devolution of inherited agricultural land and property to be decided by the respective state tenancy laws. For example, in the tenurial laws of Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Delhi and Uttar Pradesh, the specified rules of devolution show a strong preference for agnatic succession, with a priority for agnatic males. In all these states the tenancy develops in the first instance on male lineal descendants in the male line of descent. The widow inherits only in the absence of these male heirs. In addition, in the first four states mentioned, daughters and sisters are totally excluded as heirs. In Delhi and Uttar Pradesh, daughters and sisters are recognised but come very low in the order of heirs.

States where the tenurial laws explicitly mention that the devolution of tenanted land will be according to personal law are very few, and include Rajasthan and Madhya Pradesh where the personal law applies for all communities. Also in the Telangana region of Andhra Pradesh, the commentary following Section 40 of the relevant Act clarifies that for Hindu tenants the Hindu Succession Act will apply. In practice, however, even in Rajasthan daughters have been recognised as heirs only in some judgements, while in others male heirs alone have received recognition. In addition, there are states which do not specify the order of devolution in their laws dealing with tenancy land, such as Gujarat, the Bombay region of Maharashtra, West Bengal, Karnataka, Kerala, the Andhra region of Andhra Pradesh and Tamil Nadu. In these states we can presume that the personal laws automatically apply. Then there are states such as Bihar and Orissa for which the tenancy acts specify that occupancy rights shall devolve in the same manner as other immovable property, “subject to any custom to the contrary”. This leaves open the possibility of admitting gender – inegalitarian customs if established, especially for the tribal communities in these regions.

According to the Hindu Personal Law, sons and daughters are entitled to equal shares in the deceased man’s “notional” share in Mitaksara joint family property. But sons, as coparceners in the joint family property additionally had a direct birth right to an independent share; while female heirs (e.g. daughter, widow, mother) had claims only in the deceased’s “notional” portion. This meant that if a man had four acres of land and a son is born, he is left only with two acres and the rest has notionally gone to the new born son. But if a daughter is born she gets nothing unless her father dies, that too from the remaining two acres of land of which the son will also get his share in addition to two acres that was his since birth. Also, sons could demand partition; daughters could not. In actual practice, daughters get nothing, as mutation of land is generally done in favour of male heirs. In some cases they are asked to give a letter in favour of the sons.

Changes in 2005

Little effort was made until 2005 to do away with these discriminatory laws. Finally after 50 years of the 1956 Hindu Succession Act (HSA), the Government addressed some persisting gender inequalities in the HSA by bringing in the Hindu Succession (Amendment) Act, 2005. One of the most significant amendments in the 2005 Act is deleting the gender discriminatory Section 4(2) of the 1956 HSA. Section 4(2) exempted from the purview of the HSA significant interests in agricultural land, the inheritance of which was subject to the devolution rules specified in State-level tenurial laws. The 2005 Act brings all agricultural land on par with other property and makes Hindu women’s inheritance rights in land legally equal to men’s across States, overriding any inconsistent State laws. This can benefit millions of women dependent on agriculture for survival.

The second major achievement lies in including all daughters, especially married daughters, as coparceners in joint family property. They can also demand partition in the life time of their father just as sons could. Third, the Act deletes Section 23 of the 1956 HSA, thereby giving all daughters (married or not) the same rights as sons to reside in or seek partition of the family dwelling house. Section 23 did not allow married daughters (unless separated, deserted or widowed) even residence rights in the parental home. Unmarried daughters had residence rights but could not demand partition.

Fourth, the Act deletes Section 24 of the 1956 HSA, which barred certain widows, such as those of predeceased sons, from inheriting the deceased’s property if they had remarried. Now they too can inherit.

On the debate against equality the risk of fragmentation is an oft-repeated argument. This contention is misleading and cannot justify selectively disinheriting women (Velayudhan 2009). Fragmentation can occur even when sons inherit. In practice, many rural families continue to cultivate jointly even when parcels are owned individually. Another argument is that women migrate on marriage. But one might ask: if men retain their claims despite job-related migration, why shouldn’t women on marriage-related migration? They could lease out the land to their family or someone else, or cultivate it cooperatively with other women. This would give women some economic security, however small.

If her marriage breaks down, she can now return to her birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.

Even though the legal framework has been amended in favour of women as recently as 2005 with the deletion of the gender discriminatory clause on agricultural land, women often forgo their claims in anticipation of support from their natal family in case of marital problems or their marriages breaking up, even though such support may not actually materialize. Women also face impediments in operationalising the statutory codes and getting their names included in the records. Also, ownership does not always translate into control, as is the experience of matrilineal societies of Meghalaya where control is exercised by the maternal uncle. Even when women have mutations of land in their names, they may not have actual control over that land. Decision making in cropping patterns, sale, mortgage and the purchase of land or the instruments of production remains in the hands of the men of the household.

Thus the issue is not only legal, it is also cultural. As women’s control over loans, income and assets goes down, their access to social resources such as knowledge, power and prestige diminishes. Disparity in gender status gets intensified with the emergence and deepening of other forms of stratification. Subordination and seclusion of women is more noticed in communities where social differentiation and hierarchy based on ownership patterns or on prestige is more pronounced.

Rural women may be aware of the necessity of getting separate legal rights over land, but they lack the wherewithal to claim their rights through the tedious and harassing process of approaching bureaucracy and the courts. They are exploited by their husbands and even by their sons but they would not consider challenging them. They generally like to view their husbands as comrades and friends whose good wishes and advice they would like to cherish. They keep fasts for their husbands’ long life, and aspire to die as Suhagan (in their husband’s lifetime). They divide men in the neat category of good husbands and bad husbands, without realising the inherent exploitation in the very institution of patriarchy and property customs (Ellis 1988: 170). These norms serve as barriers to women’s ability to exercise direct control over the land they may inherit in their natal village. Thus along with initiating legal rights over land to women one would have to conscientise them about the existing realities of power inequities within the family, which would require a great deal of political courage.

Asset redistribution is superior to income redistribution. It provides a basis for overcoming distortions in the functioning of markets and for restructuring gender relations in the fields of property rights, access to technology, healthcare and governance. Asset ownership and control rights are preferable to numerous policy alternatives for women’s empowerment. These are likely to bring in changes in public opinion about gender roles and social cultural norms of deep-seated social inequalities of women such as the household division of labour, restraints on women’s speaking in public, constraints on women’s mobility and pervasive gender-based violence within the home and outside (Kelkar 2011).

BY: N C Saxena,  A Member of the National Advisory Council (E-mail: naresh.saxena@gmail.com)