WUNRN
INDIA - WHAT IS PREVENTING WOMEN FROM INHERITING LAND?
A STUDY OF THE IMPLEMENTATION OF THE HINDU SUCCESSION (AMENDMENT) ACT 2005 IN THREE STATES IN INDIA
Dr. Ashok K. Sircar & Sohini Pal - Landesa,India 2014
Direct Link to Full 29-Page Study Report: http://www.landesa.org/wp-content/uploads/What-is-Preventing-Women-from-Inheriting-Land-Sircar-Pal-March-2014.pdf
5.0 Conclusions
The Hindu Succession (Amendment) Act 2005 recognizes the right to inheritance of agricultural land for all women agricultural producers. A careful reading of the findings of this study, however, points to significant and persistent gaps between women’s legal rights and their actual inheritance of land, and between the limited ownership rights women do enjoy and their effective control over land. The gaps are, by and large, due to (a) gendered identities and practices, which often restrict women’s ability to articulate as well as to exercise their right to inherit land; and (b) institutional practices, which are not gender neutral, rather they are essentially based on conventional male ideals. The following conclusions capture the inferences on the basis of the findings:
1. Hindu social practice sees dowry and a daughter’s inheritance as intricately linked. The father of the bride is morally obligated to pay dowry at the time of his daughter’s marriage, and the dowry is regarded as her share of the natal family’s property. Dowry as a substitute for land and other properties in inheritance is one key way that patriarchal beliefs are deeply anchored in social practice, denying women social and economic equality within the family. This probably works as the strongest social barrier against women’s equality.
2. Even when the women receive land in inheritance, it is invariably much less than an equal share. Women are likely to get more land as widows than as daughters. There seems to be a larger level of social acceptance emerging that a widow has moral rights to claim and get her late husband’s share of land. However, this is not yet a dominant social trend.
3. Even though most of the women reported wanting to own land, they also said they did not want to inherit it from their parents. The most common reasons given were that their parents or brothers would not agree, and it was important for them to have their families’ support in case they ever
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encountered problems with their marriage. Patriarchal practice ensures that women remain dependent on their brothers and parents in case they face problems within marriage rather than depend on their own agency supported by ownership of assets that provide her with a dignified existence.
4. While some parents may be willing to give land to their daughters, the resistance from brothers against their sisters inheriting parental land can be stiff. This is in contrast to the same men supporting or even encouraging their wives’ claims for their share of land from their parents.
5. Women’s understandings of the current inheritance law and of the claim processes are rudimentary and fragmented. Land has historically been a male domain, and it continues to be so.
6. The burden of dealing with the administrative and quasi-legal processes to claim inheritance rights combined with the social backlash this would entail appears to be too heavy of an obstacle for most women. The complicated administrative systems and procedures are thus working as a formal barrier to most women.
7. The administrative processes related to mutation and partitions of land are largely insensitive to women’s constraints. An important but perhaps not sufficient exception is the changes instituted in Madhya Pradesh, involving endorsement of the Gram Sabha.
8. Social barriers also are reflected in the way the Patwari and the mutation process works. The Patwaris’ primary efforts appeared to be to complete the procedure, not to protect the women’s interest, as envisaged in the law. The Patwaris are handicapped because they have not received any orientation on the HSAA. All the Patwaris we met in the three states expressed their desire to get more clarity on HSAA and, in particular, on how it changes the processes on the ground.
9. The Tehsildars we met in the three states universally "blamed" the women for not coming forward to claim their legitimate rights. The Tehsildars also saw the wide gap in social awareness on equality of women and men’s land rights. However, it was clear that the Tehsildars see themselves as a judicial authority and do not feel obligated to promote such awareness or to adjust the process of mutation.
10. While the District Legal Services Authority has the mandate to provide legal assistance to the poor, their mandate does not include HSAA-related issues of poor women. The DLSA staff expressed the need for legal literacy of women on land rights in order to generate widespread awareness among women. They recommended engaging with the leadership of the Self Help Group Federation on this issue.
11. The Gram Panchayats are almost universally clueless on what they can do in connection with implementation of the HSAA. The Sarpanches overwhelmingly re-iterated the predominant social norms did not show any institutional concern about the prevanent practice.
6.0 Recommendations
Based on the findings and conclusions drawn from it, we would like to make some recommendations to the state and national governments of India and civil society organizations. As we have seen, barriers to the full implementation of the Hindu Succession (Amendment) Act 2005 are present both in the formal institutional domain and in the domain of social practices and norms. Our recommendations cover both.
1. The Revenue Department of the three states should institute a thorough review and revision of the processes of mutation and partition on the principle of providing equal treatment to women as per the statutory commitment made under the HSAA. The revision should provide clear guidelines as to how these processes shall ensure women’s equality in rights to agricultural land.
2. The staff and officials responsible for providing mutation, updating land records and partition, should undergo dedicated training on the new guidelines on how to implement the HSAA with the clear motive of protecting and ensuring women’s right to agricultural land under inheritance.
3. The District Legal Services Authority should include the HSAA as one of their listed topics on which to provide legal advice, conduct legal literacy campaigns, and fight cases in favor of women’s inheritance of land.
4. The judges of the lower courts, including Tehsildars, should be sensitized on the importance of women’s land rights.
5. The Gram Panchayat and Panchayats at the Block-level should be informed on the provisions of the HSAA, and of their responsibilities in this regard, in particular on equality of women’s land rights under inheritance.
6. Wherever possible, a paralegal program should be instituted to pro-actively assist the women to claim and pursue their rights to inherit agricultural land.
7. Legal literacy on HSAA and related issues in combination with other legal rights of women should be packaged as a program for the Self Help Group Federations.
8. Madhya Pradesh’s good practice of Gram Sabha endorsement of the legal heirs of a deceased person should be replicated in other states.
9. To overcome the social barriers and complicated administrative procedures, the Revenue Department should conduct village-level camp courts especially to ensure women’s right to agricultural land. This will help hundreds of thousands of widows and other single women to come forward and claim their rights.
10. While inheritance rights are critical for women, it does not take away the issue of women’s property ownership under marriage, which will ensure most productive use of land besides providing dignity and security to women. Therefore, inheritance and property rights under marriage should be seen as complementary.
11. Land administration at the state-level are still in the era of regulation and revenue generation, and often fail to take cognizance of the pro-poor social and economic development functions of land rights as a whole, and that of women in particular. A serious national campaign is needed to bring back land as a development agenda.