Barriers to women’s secure land rights: Web of legal, structural, socio-economic, cultural factors

women farmersExcerpts from the report “India: Land Governance Country Narrative”*, by Pranab Ranjan Choudhury, Sricharan Behera, Navin Kumar Amang, Manoj Kumar Behera, published by NR Management Consultants India Private Ltd

The Constitution of India provides equal rights to both men and women. Following Independence, many progressive laws around land reforms and policies were enacted with focus on redistributive justice and gender equity. As land is a state subject, many states have gone ahead with positive initiatives to ensure gender justice in land governance framework. Despite several policy initiatives the growing disparity in land ownership is a cause of concern for many.

There are various property rights regimes prevailing in different parts of the state and the succession Acts of various religious groups like Hindu, Muslim and Christian Succession laws on determining woman’s right to property and inheritance. The Sixth Scheduled areas of north-east have different customary tribal laws on women property rights and inheritance which also varies with specific indigenous community laws.

Similarly, in Fifth Scheduled and other tribal areas like the tribal customary laws determines rules of woman’s rights to property and inheritance. In India, 75 percent of female workforce depends on agriculture for food and livelihoods are largely marginal or landless.

Measure various states in India taking to ensure gender equality with respect to land rights

In India, almost a third of cultivator is a woman, who own less than 13 percent of land. Women in India, operates 12.8 percent of total operational holdings that includes an area of 10.34 percent of the total area of operational holdings as per Agriculture Census, 2011. The average size of women land holding is 0.93 ha, in comparison to 1.18 ha for male and 1.15 ha for all.

Variability exist in different States e.g. in Odisha women own under 3 percent of marginal holdings (1 ha. or less) while in Chhattisgarh they own more than 13 percent of marginal holdings 121 . Women’s access to land is largely through inheritance, and inheritance is governed by customs which are highly biased against women though there are regional variations within the States. There is also wide gap between ownership and actual managerial control over the land123; provisions of the law and actual practice.

A 1985 policy directive had recommended that States give joint titles to husband and wife in transfer of assets like land and house sites through Government programmes. The southern states like Andhra Pradesh, Karnataka, Tamil Nadu, Maharashtra have comparatively better situation in granting land rights to women holding land in more ryotwari areas by amending Hindu Succession Act 1956 prior to 2005 and including daughters as coparceners. In these States women are allowed to inherit agricultural land, whether owned or under tenancy.

Reduction of stamp duty, for the lands registered in the name of women, has encouraged women’s property ownership rights in some states like Himachal Pradesh, Uttar Pradesh, Madhya Pradesh, Haryana and Delhi. The stamp duties are applied differently in states, regions in which a sale is executed and nature of registration. A study by Landesa (2013) in three states reported that women have benefited significantly (one out of four women interviewed had benefited) from this incentive in Madhya Pradesh, where the state provides a 2 percent incentive for properties registered in the name of women.

Odisha land reforms Act 1960 has provision to allot ceiling surplus land in the name of ‘person under disability’ means widow, or an unmarried woman, divorced or separated from her husband by a decree or order of a Court or under any custom or usage having the force of law. In Tripura, patriarchy influences in government land allotment, however purchase followed by inheritance are the major contributors to enhanced women’s land rights with about 34.6 percent of holdings and 34 percent area operated by of women.

Muslim women have better land rights due to the customary practice of den mohar. Tribal women were not conferred land rights when government granted plain lands to tribals to wean them away from shifting cultivation because the customary rights of tribals in Tripura are heavily biased against land rights of women.

The State of Odisha allowed co-ownership of woman over homestead land with joint title since 1989 in the name of husband and wife, widow and single woman with joint application binding. A wife becomes a joint shareholder of the deceased husband’s land, along with her children. The ceiling surplus land is recorded in the name of the wife/daughter to avoid ceiling restrictions. In case of no male heir in the family, daughters get the RoR transferred to their names.

Though intestate succession laws are in place, Karnataka grants Hindu and Christian (but not all Muslim) widows and daughters the right to inherit land, these laws are mostly ignored or unknown, and in any case can be circumvented by drafting a will.

Major barriers for women in terms of achieving legal rights to land

The barriers to women’s secure land rights result from an overlapping web of legal, structural, socio-economic, and cultural factors. However, reforms initiatives have been taken including the Constitution of India and long before and after the Hindu Succession Amendment Act, 2005 for conferring property rights of woman. The open space available for using “persons” without any gender tag in the existing state revenue laws and land record formats are also there to grant land rights to woman but are manipulated or over sighted causing their exclusion.

The fact that the definition of ‘family’ is not uniformly applied and interpreted across state land laws, and the provisions and application of land ceiling laws in various states, are different, have also affected the women land rights scenario. While laws or policies are available in several States, their true spirits are not adhered to or not properly enforced at the ground level. The mainstream patriarchy and the social customs relating to the women’s location gender social matrix are the real barriers against “writing rights of the woman” over land.

Land institutions often discriminate against women in access and ownership of land resources. Agarwal (2003) found that this bias is especially prevalent in recording the daughter’s inheritance shares by the patwari (village land records official) in north India. Mearns and Sinha (1998) also found that conventional land survey and settlement operations in Odisha discriminate systematically against the rural poor and other socially excluded groups. Gupta (1993) has reported that Operation Barga in West Bengal was biased towards the registration of male rather than female tenant farmers in spite of its success in other respects. The social matrix continues to be tilted in favour of men to singularly make decisions about land transfers with increased domestic violence in a joint patta framework. Although the legal relationships have changed in favour of women, the societal perception of women’s rights to land remained almost conservative.

The inheritance laws provide for daughters and daughters-in-law to receive rights over property, effective legal actions are not made on behalf of these disadvantaged women. The local level land administration officials are weak and reluctant to take up such partition cases to ensure due share of inheritance. Therefore, Government directions are available to record land jointly in the name of both spouses but such recording is limited only to government land distribution. The Hindu Succession Amendment Act, 2005 brought Hindu women’s inheritance laws on agricultural land on par with men, overriding State laws that discriminated against women. It conferred daughters including married daughters, birthright over joint family property.

*Click HERE to download full report

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