Customary practices, laws in most cases don’t recognize Gujarat adivasi women’s rights over land

adivasiExcerpts from “Adivasi Women’s Rights Over Land”, a project report prepared by the Working Group for Women and Land Ownership (WGWLO), a network of 41 NGOs, CBOs and individuals in Gujarat:

The recognition of adivasi women’s rights over land tend to fall within the realm of both customary and the formal legal system. In the recognition of land rights through inheritance the use of the formal legal system through the  Hindu Succession Act,1951  in the revenue land but in the case of forest land the Forest Rights Act,2006 has been used. In the case of women’s rights over land customary practices and law in most cases do not recognize the rights of adivasi women over land. The existence of a formal legal system that allows for such recognition of rights for women in the different roles they occupy within a community challenge the contours of customary law within these communities. There is a constant tussle between the two sources of laws without any stark hierarchy in their relationship.

There are instances where there are clashes between the customary and formal legal system and the clash has been identified in the following pockets:

  • In cases where bigamy exists customary law recognizes the right of the second wife whilst the formal legal system does not include such considerations so the talati refuses to register their rights over land;
  • Another area of conflict is in case negotiations are under way in the panch on the basis of customary law and it is not resolved the formal legal system is brought in to resolve the issue by taking the matter to court. This highlights that the hierarchical relationship of the formal legal framework to customary law which exists in the modality of state functioning is also seen in the resolution of disputes at the local level.
  • Lastly, the practice of witchcraft though accepted in customary norms is not accepted in the formal legal system

The relationship between the formal legal system and customary legal system is complex in the context of land rights while on the one hand the formal legal system is progressive in its recognition of women’s rights over land and challenging the boundaries of customary law. The same ability of customary law in the context of bigamy seems like a difficult argument for the formal legal system and its institutional structures to incorporate.

The other area of conflict is the notions of property rights within customary law of adivasi communities and that which is embedded in the formal legal system particularly in the case of common land. The recognition of rights over common land have strong roots in customary practices of these communities which is based on an internal system of rules for the management and restrictions in the use of resources which may not be reflected in the formal legal system. The recognition of rights over common land is possible within the Forest Rights Act, 2006 in the case it comes within forest land and it becomes difficult to reconcile this conflict in the case of revenue land where the formal legal framework is weak in its recognition of common land which does not directly intend that the customary law then becomes applicable.

Gathering of Legal Evidence and its Manipulation: An imminent hurdle in the processing of claims to land rights is twofold, firstly the absence of knowledge of legal evidence for such processes (Eg survey number, death certificates and others) and secondly lack of access to legal evidence. In the event of the lack of information it can be accessed through the use of the right to information act, 2005 or by requesting it from the talati who often holds the land records. The lack of access is primarily due to the prevalence of corruption or patriarchal structure which has seeped into the administrative body. In such cases the use of the RTI comes in handy to claim the information needed from the appropriate source. In many cases the legal evidence is also manipulated at the level of the talati or mammladar where there have been instances where records have been changed and at times they have been alerted by the sarpanch earlier before the paralegals intervene. The additional burden of costs that are incurred in the process of gathering of legal evidence can prevent women especially widows from following through with the process of filing their claims for recognition of land rights unless they are supported through an external source. In most cases the Self Help Group or the Mahila Sangathan tend to provide financial assistance in such cases.

Multiplicity of Authorities: There are overlapping jurisdictions in the management and governance of land as in some cases there is lack of clarity in the categorization of land as revenue or forest land. This acts as a hurdle in the claiming of land rights and women are subject to hostility from the forest department in case of use and access to resources. This also places the adivasi women in a grey area while claiming their rights over land where the use of laws are particular to the nature of categorization of land. In such cases most organizations file right to information applications to understand the nature of categorization of land or approach the authorities for such clarity so the appropriate legal route can be chosen. This however is a time consuming process and acts as a barrier in claiming of land rights.

Adivasi Land being transferred to non-adivasis: Most areas across the tribal belt of Gujarat namely Panchmahal, Dahod,Narmada,Tapi, Dangs and Sabarkantha have been categorized as schedule V where land cannot be sold or alienated to a non-adivasi’s, yet there have been instances of such alienation in the form of :

  1. Surrendering land in the form of security for debt to non-adivasis;
  2. Sale of land to non-adivasis by the adivasi community; and
  3. Claiming of land as forest land by the forest department through the planting trees and afforestation initiatives.

This acts as a violation of the provisions of schedule V which seek to protect the rights of adivasis over their customary lands and waters.

Socio-cultural

Dakin/Dyan: The practice of labelling women particularly widows as Dakin or Dyans were seen as a pervasive problem. The act of claiming land rights or being vocal many a time triggered this process of labelling. The violence that accompanies this practice varies based on the amount of land being claimed and the support system that the widow/single woman has in her village. The nature of violence inhabits a spectrum that ranges from verbal abuse to murder. The interviewees described case studies that showcased both the expressions of violence. This practice very easily changed the identity of the widow and brought with it threats to her land and hence it acts as a strong social deterrent for woman especially widows to claim their rights over land. An interesting insight was that women whose rights had been recognized were better positioned to challenge the nature of violence that came with this label as she was economically independent. In many ways even if the claim for land rights acts as a trigger for such labelling it also acts as a strong foundation to challenge this practice.

Nexus with Domestic Violence: There is a deep nexus that was identified through the course of the case studies and insights shared in the interviews with the claim of land rights and increased instances of domestic violence. Daughters and wives were more subject to such violence in the observation of the interviewees. The assertion of land rights created a challenging dynamic particularly if there were male siblings who would subject women to such violence as their share was effected.

Threat of ending relationships: Another element that acted as a hurdle in the claiming of land rights is it was seen as symbolic of conflict and that the understanding that existed between family members were no longer trusted. The act of formally entering the name of the daughter/wife/widow into the title over land was seen as an act of defiance where the family ties were being challenged in relation to materiality of land. In many cases relationships have ended or been adversely effected through this process. Negotiations have helped in alleviating such impact yet this threat acts as an initial deterrent to women to assert their claims over land.

Intercommunity Dynamics: For instance the OBCs in the area of Devarh-Bariya were known to hold land as collateral for debts that have been given to the adivasis. They would then change the ownership documents to transfer the land into their own names. This further deepened the divide between the communities legally classified into these categories. This transference of land to non-adivasis is being countered by surrendering the land with the SHGs in exchange for debt which ensures that the ownership remains intact.

Dawa: In cases of love marriages there was a custom where this was not accepted and the bride is sold at a price and sometimes these transactions also involve the exchange of land.

Challenges faced by Widows:

  1. They are very often labelled as Dyan’s as mentioned earlier;
  2. They have no existing support system and this vulnerability prevents them from asserting their rights over land;
  3. They find it extremely difficult to pay for the expenses that need to be incurred for the claiming of rights over land;
  4. Their rights over land are sometimes not recognized because they might remarry or are accused of having an affair; and
  5. As their rights over land are recognized they need assistance to sow land and on occasions they do not receive this support.

Challenges faced by daughters:

  1. In case they have brothers very often they are denied this right when consent from the family is required because she will be married and will be given a share in the land of her husbands house; and
  2. She is often threatened with the ending of relationships with her family.

Challenges faced by single women (ekal nari):

Single women have been described as:

  1. those who have not been married and have no other family alive;
  2. Those who have been married but have no children and their husbands have left them; and
  3. Women who have no existing relational support system.

The challenges faced by them are:

  1. They are also vulnerable to the practice of being called a dakin;
  2. They have difficulty in gathering legal evidence as well as money to support the related expenses of this process.

Bigamy: Another practice among the adivasis in this area is that of bigamy. Usually it is known that young men tend to marry older women which pushes them to marry again. This poses challenges in the event of claiming land rights of women. In most cases the property is equally distributed based on customary law, however this is not always the case and sometimes there are cases of uneven distribution of property rights between different wives.

Click HERE for full report

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