Women Land Rights: Perspective and Prospects

written by Pravat Mishra, Sr. Programme Manager, RCDC


Introduction:

Land as a natural resource is linked with people’s identity, dignity and livelihood. It is regarded as the first factor of production and primarily from the ancient period people have realised the importance of land. Emperors, Kings and even Jamindars were the lords of the land and were collecting revenues. Later in Moughal and British period, the rulers impose various tax systems to govern the land and people. In post independence period, Land was placed in state subject. State governments have prepared the land records and fix the revenue collection within a governance framework.  The two broad categories of land are Revenue land and Forest land. But the social and cultural factors were reflected in the governance of land which alienates women rights over land.

So far as revenue land rights are concerned, the women do not have any land rights till 1936. From 1936 to 1956, the women only have maintenance rights. Their maintenance rights were associated either with their father or with their husband. However, in 2005, the women have their equal share in their paternal property as like as sons.

In case of government schemes like distribution of land patta to the landless families under ceiling surplus, vasundhara etc, the title holders are  both the spouse. Similarly, in case of FRA, the forest land titles are issued in the name of both the spouses.

Women and Land Rights

In a patriarchal society like India where women’s identity flows either from her father or her husband’s identity, talking about her rights on a precious resource like land is not much talked about a topic.

In fact women’s land rights have often been subsumed as those of her husband’s. She is not counted as an owner in her own right and this makes her disproportionately vulnerable to losing her entitlement over land16. As per the 1988 prevention of Benami transaction law, if there is land in the name of the wife or daughter, it would be assumed that the land belongs respectively to the husband or father.

Significant gender biases persisted both in land reform legislation and in personal laws. Most of the land reform legislation was enacted during the 1980s before women’s land rights were considered worthy of policy attention (Agarwal 1994). No mention of women’s land rights was made until the Sixth Five-Year Plan (1980-85). The Eighth Five Year Plan (1990-95) called for a change in inheritance laws to accommodate women’s rights but gave few specifics and called upon state governments to allot 40 per cent of ceiling-surplus or state-redistributed land in the name of women alone, with the remainder to be joint titled.

Hindu Succession Act of 1956 gave equal inheritance rights to the daughters along with the sons on the parental land. But not much women have ahead to make a claim for their rights owing to the fear of social criticism. Moreover owing to the practice of dowry the women she feels morally pressurised to put such a demand before her parental family.


Women and land rights is one of the most crucial issues of any society that is trying to bring in equity and justice. Access to land is a necessary condition for poverty alleviation, and so an adequate legal framework for land rights to women, is more than essential. In the context of a developing country, land rights are crucial as they are linked to issues like right to food, work and other human rights. It is now increasingly understood that the denial of inheritance of land rights especially in a patriarchal system has contributed to the subordinate status of women. Therefore, the Hindu Succession Act 1956 as well as several other legislations has been amended keeping in mind a gender-just approach. As per different land laws, the State Government may distribute all such land under ceiling surplus that is not categorised as commons, gochur and rakshita and those which are not under the discretion of the WAKF Board to a set of landless people. Among them, landless widows and unmarried women up to 30 years old are listed as beneficiaries who get high priority.


Land Rights for Women
Dis-aggregated by Religion
 

The Hindu Succession

Act 1956

 

Land rights for Muslim women

 

 

Property rights for Christian women, 1925

 

a. Daughters have equal rights like the son has over paternal property including land.

 

 

a. The wife or widow is entitled to one-fourth of her husband's property, and one-eighth in case of a joint family.

 

The wife does not have any right over husband's property as long as her husband is alive.

b. Under Section 14, women have ownership over land. Women who have got ownership rights over land can transfer the land to the person of her choice.

b. The daughter is entitled half of her parental property if she has no brother, and half of what the brother gets in case she has a brother. The male heir gets double what the female their gets.

b. A widow gets one-third of her husband's property.

 

 

c. Under Section 23 women have residential rights over their parental house. They cannot sell the land/ property but can claim their share in case of a sale.

c. A mother has rights over her son’s property. In case, the son does not have a child, the mother gets one-third of her son's property, and in case he as a child, she gets one-sixth.

c. A daughter gets an equal share like the sons do from the parental property.


The past has revealed that even when the government made efforts for the distribution of degraded and ceiling surplus land to both the husband and wife in the case of landless persons, this either was not implemented or hurdles in implementation were not shared. As a result, the beneficiaries would be unaware of the system of joint
patta as the application for land settlement came normally in the name of the husband. Therefore, a fresh circular in 1989 made the joint application both in the name of husband and wife mandatory failing which land patta would not be granted. In the case of a widow, the patta would be in her name.

In order to give preference to widows, unmarried women, victimised women and women living below the poverty line, in 2002, the Government of Odisha decided to allot at least 40 percent of the Government wasteland kept for agriculture and house site purpose, ceiling surplus land and Bhoodan land. The government also stressed that at least 40 percent of this land should be allotted to women belonging to the Scheduled Tribes and Scheduled Castes.

The recent Orissa Rehabilitation & Resettlement Policy, 2006 has some progressive features such as unmarried daughters/sisters more than 30 years of age should be treated as separate families. Physically challenged persons, orphans who are minors, widows and women divorcees are also to be treated as separate families.

Though elaborate provisions have been made to ensure land rights to women in the practice this has not always been followed. There are significant gaps between women’s land rights and their actual ownership and possession, and between the limited ownership rights and their effective control over land. For instance, the Orissa Land Reforms Act does not mention the order of devolution of tenancy land – whether it would be according to personal law or would follow a different order. This is not clear and therefore open to interpretation.

RDI (Rural Development Initiative) has been running a women’s help centre for providing support to marginalised and landless women to acquire land under existing schemes of government. The support centre operates at Tahsildar office. Various awareness initiatives have been taken by the organisation to create awareness not only about the need for women to own land but also about the support centre and its services.


Women’s legal rights in land conflict with deep-seated social norms and customs, and are rarely recognised socially to be legitimate. There are strong pressures, reinforced by social stigma, seclusion practices, and other sanctions, on women to forfeit their legal rights in favour of their brothers. Women tend to internalise the imposed social restrictions because they feel that they may find themselves dependent on their brothers for economic and social support in the event of widowhood or marital break up.

Women’s lack of control over independent sources of income has implications not just for their own well-being, but also for their children’s, since it is known that child nutritional status is more closely related to women’s than men’s income. To the extent that women’s income is land-based, women’s lack of access to and effective control over land may therefore threaten the well-being of many household members. This applies to women from all social strata. On efficiency grounds, women are often the sole or de facto heads of households and, on the assumption that greater tenure/ title security provides production incentives, granting them independent title to land is likely to lead to higher agricultural output. However, this is only applicable if existing gender biases in agricultural support services and factor markets are corrected. Indeed, recent experience with savings and loans groups in India suggests that women are frequently better credit risk managers than are men.

In the context of women’s role in agriculture, it would be worthwhile to discuss land rights provision for women in the Orissa Land Reforms Act. The Act allows widows, divorcees, unmarried women to lease their land for cultivation, when leasing is otherwise prohibited. Although this seems progressive, it may have two underlying presumptions a) women should be protected from cultivation, therefore, they should be allowed to lease their lands, and b) only female heads of households should have control over land, while the normal married women’s control over land is subsumed under ‘family’. Due to lack of education and awareness, women invariably do not have record of rights. One of the biggest limitations in matters of women getting the actual land rights is the lack of strict enforcement of law and strict monitoring of such empowerment process. For instance, the law says that if a family has more land than the ceiling set by the government, the surplus land is recorded in the name of the wife/daughter to avoid ceiling restrictions. Largely it has been observed that people accumulate more than the ceiling and put it in the name of the women member of the family though de facto ownership lies with the male members.

Agricultural land subject to tenancy is exempt from the Hindu Succession Act, and is governed by state-level acts. In states such as Uttar Pradesh where tenancy is officially banned, this precludes most arable land. In the case of land ceilings acts, additional land may be kept in the case of adult sons but not adult daughters. Also, in assessing ‘family’ holdings, holdings of both spouses are considered, but women’s holdings are often arbitrarily declared as surplus land while men’s holdings remain untouched. Though, in most cases, the law is clear it is the social customs and practices that stand in the way of women obtaining land rights. Ensuring land rights for women is more a social mobilisation exercise rather than a legal reforms issue.

Do I have land rights? Who will ensure it?

Case study of a Dalit woman and her land right issues as cited by Mr Manas Jena, a human right worker in a workshop organized in Bhubaneswar on ‘Women and Land Rights’

Pabani nayak, a dalit women, working in a crushing unit fell in love with a man of higher caste and later she married him. But after some time the man left her. Pabani was now forced to return to her parents. His parental family had hardly 3 decimal of land which his 3 brothers did not wanted to share with her and so they asked her to leave the house and make her own arrangement. She applied for land at Tahsildar office and got 4 decimal of land in the middle of the village. She constructed a small hut and began to live there. But soon her house was attacked and broken by the villagers because they were not ready to allow a dalit woman to stay in the middle of the village.

Thus two aspects of land rights need to be taken into consideration especially in the context of women – legal access and physical access

 

 

 

 

 

 

 

 

 

 

 





 Land Rights and Ownership in Scheduled Areas

Ever since independence various land reforms initiatives were taken to abolish intermediary interests so as to ensure direct relationship of ryots (farmer) with the state. The Odisha Estates Abolition Act 1952, the Odisha Tenant Reforms Act 1955, the Odisha Land Reforms Act 1960, Odisha Transfer of Immovable Property Regulation 2 of 1956 (amended in 2002) are some of the important steps taken o safe guard the interests of the landless poor. The Odisha Transfer of Immovable Property Regulation 2 of 1956 was further amended in 2002 and rules were made more stringent to check large scale alienation of tribal land in scheduled areas. The regulation prohibits transfer of immovable properties belonging to members of Scheduled Tribes in favour of persons not belonging to that category. This regulation provides for penal action in respect of illegal transfer as well as unauthorised transfer. In spite of all these provisions illegal transfer and sale of land is a regular feature in tribal areas. Many of these cases remain unreported.

An interesting aspect of the Regulation amended in 2002 is that ‘a member of the Scheduled Tribe shall not transfer any land if the total extent of his land remaining after the transfer is reduced to less than two acres in case of irrigated land or five acres in case of irrigated land.’ However, it is not clear this will be applicable if government is acquiring land for public purpose. All transfers from Scheduled Tribes to non-Scheduled Tribes between 4th October, 1956 and 4th September, 2002 should have been proved to be legal to the sub-collectors concerned by 4th September 2004. Non-conformance with this would lead to the transfer being treated as illegal and persons in fraudulent possession of tribal land to be liable to a fine of up to Rs. 5000/- and two years of rigorous imprisonment.

Section 5 (2) of the Fifth Schedule refers to land and its ownership as follows, (a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area; (b) regulate the allotment of land of members of the Scheduled Tribes in such area; (c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area. The Gram Sabha or the Panchayats are to be consulted before acquisition of land in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects. The actual planning and implementation of projects in the Scheduled Areas is to be coordinated at the State level.

Conclusion:

Legal awareness generation among women is needed as most of the women do not get scope to avail that in rural areas and even in urban areas. The process of land administration should further be decentralised to create scope for the women to have easy access to it. Normally, the women hesitate to put forth their rights over land in front of their parents/ brothers and husbands. It is treated as a social deviant behaviour. However, it is the fundamental right of the women to have land right as it is associated with their life and livelihood. If they view it as their property right then it will not become a fundamental right.

Pravat Mishra, Sr. Programme Manager, RCDC