How India’s property, succession and inheritance laws are rooted in inequality

In 1983, a divorced single mother from a wealthy and influential family in Kerala sued her brother for a fair share of the ancestral property of her father, a former imperial entomologist at the British court, who died intestate. At the time, women from Syria’s deeply conservative and close-knit Malabar Nasrani community were barred from inheriting their father’s property, under the Travancore Christian Succession Act of 1916. In 1986, however , Mary Roy won a similar lawsuit against her. brother George, marking a turning point towards gender justice, not only for Christian women, but for all Indian women. Years later, in 2006, Roy, who had by then become an educator, women’s rights activist and ‘Ammu’, the protagonist of her daughter Arundhati Roy’s Booker-winning film The God of Little Things, said she didn’t do it for the “public good.” She did it because she was just “so angry”.

Much has happened since 1986 with regard to women’s land rights. The Hindu Succession Act 1956 and its 2005 amendment gave daughters the right to own and inherit ancestral property. In subsequent verdicts, the Supreme Court (SC) confirmed that the law applied to women born before 2005 as well as those whose fathers died before 2005. Inheritance rights for widows have also been strengthened since 1937, when when it was first introduced.

Much like Roy, however, women in India remain angry.

While Roy was an upper caste woman born into a wealthy family with many ancestral properties (her share amounted to 2 crore rupees, which she later donated to charity), land rights in India affect mainly women from lower social and economic strata. As far as the most marginalized sections are concerned, the successive judgments of the CS and the legislations have not really solved the real problems.

Legal and technical gaps

Since succession, inheritance laws and processes vary from state to state and community to community. Take the case of a state, Gujarat, where, despite Hindu inheritance law, women in urban and rural areas find it more difficult to inherit ancestral lands.

One of the first issues is the lack of legal and digital knowledge regarding inheritance/inheritance rights and laws. Neelam Patel, a lawyer who works with the Working Group for Women and Land Ownership (WGWLO), a consortium of groups working for the land rights of women farmers in Gujarat, says she is aware of land rights and the various documents and processes needed to even get their names registered in the real estate transfer papers, remains largely absent.

“We have been working in Gujarat since 2002, to build the identities and rights of women engaged in agricultural work. We see big gaps in awareness and implementation of inheritance laws and processes,” said Patel, a land rights advocate working with WGWLO. Outlook.

The inheritance process is cumbersome and requires a woman not only to prove that her father/husband/brother is deceased (i.e. a death certificate which women often do not have), but also to provide two witnesses who know her and can vouch for her as related to the deceased. These witnesses, says Patel, are usually susceptible to pressure and bribes from the woman’s male family members or in-laws who might try to cut her out of the inheritance.

Even after a woman managed to collect all the necessary documents and reached a Patwari (junior tax official) with witnesses to have his name recorded for transfer and estate papers, the wife’s parents-in-law or relatives often have it removed in later documents through bribery, falsification or deception.

“In the event of a dispute, the burden of proving ownership of the property generally rests with the woman. If there are other people claiming ownership, it is the woman’s responsibility to collect each of their signatures and Aadhaar details and submit them to the patwari. Many deliberately refuse to give their contact details to delay or hinder the application for inheritance,” says Ashwinbhai Gamit, a community legal worker trained by the consortium to help women facing land disputes in rural areas of Gujarat.

Ashwinbhai, who is part of a network of PLWs working on the ground to increase women’s technical and legal literacy, says the lack of stable internet services or access to smartphones in remote rural areas also hampers the process of online application. He adds that in the villages, patwaris illegally charge anywhere between 5,000 and 30,000 rupees just for making or approving these simple documents.

Lifetime stigma

The social stigma attached to widows and single women also affects the implementation of inheritance laws. “After the death of a husband, a widow’s in-laws use various tactics to keep her away from the property, lest she remarry and leave with her share,” says Parulben Harhadbhai Kolipatel, another PLW of the district of Ahmedabad. She adds that these acts find overall support from the community.

Even after a woman has had her name recorded for transfer and inheritance papers, her relatives often have it removed using bribery, forgery, or deception.

This stigma can even take the form of violence. In tribal areas, the work of paralegals includes campaigning against social evils such as Dayan Prata (witchcraft), which continues to be prevalent in Gujarat and states like Jharkhand and Chhattisgarh. Adivasi activist Jan Adhikar Manch Aloka Kujur from Ranchi had previously spoken to Outlook on how the Dayan Prata was frequently used as an excuse in Jharkhand to threaten or kill single or elderly women and usurp their property.

Community workers like Parulben who work with widows or socially sensitive cases like inter-caste marriage resulting in property disputes, may themselves face threats from the families of the women they represent. “I have faced such threats from disgruntled in-laws asking me to stay away from a case. This is a problem female paralegals often face. We try to help other women as much as we can. But at the end of the day, it’s the state’s job to provide safety and support. There’s not much we can do at the community level,” he adds. she.

Generational inequalities

Polygamy within certain tribal groups like the Gamits, who are also governed by Hindu succession law and form a significant portion of the population of Gujarat, is another interesting example of the many complexities that land rights activists face. when implementing SC orders on succession and inheritance.

Radhaben, who is from the Gamit community of Gujarat and has been fighting for rights to his ancestral farmland since 2020, raises an interesting question. His great-grandfather had two wives. His grandfather, son of the first wife, also had two wives. His father was the son of the second.

Woman: Artwork of Anupriya

Now, after the death of the great-grandfather in 2018 and his father in 2020, who had no male heirs and died intestate, Radhaben and his two sisters are asked to leave the land of their great -grandfather. In such cases, the applicant must first prove the family tree, which requires Radhaben to obtain documents going back three generations. She also has to seek consent and submit documents for each of the 48 family members disputing the land claims, just to get her name on the papers. Radhaben and his sisters are illiterate and depend on the farm for their survival.

“At that time, the land was bequeathed orally by the elders. The names of my mother and my sisters were not there in the property or varsai papers (inheritance). We don’t have any brothers, so other parents have all united against us because we are women and they think we will give up soon,” she says. Outlook.

If the women of the upper castes get the rawest share of a property contract vis-à-vis their brothers, those of the oppressed castes have no right to property.

Since Hindu marriage law excludes polygamy, the laws relating to the property rights of first and second wives and their offspring are highly nuanced and require the judge to invoke several laws to arrive at a justifiable verdict.

In India, laws governing property, succession and inheritance are rooted in inequality and an oppressive caste system. If the women of the upper castes get the rawest share of a property contract vis-à-vis their brothers, those of the oppressed castes have no right to property. The Manusmriti and other ancient Hindu legal treatises, which laid down these retrograde rules of property, mentioned that the property of upper-caste women who marry out of caste or with lower-caste men would not pass to the lower caste family. , but to his own paternal line, thus keeping the property within the caste group.

Incidentally, the Manusmriti continues to resonate today. Some 400 castes across Gujarat recently demanded that the government legally consider that if a girl marries outside her caste as per her wish, she should not legally inherit parental property.

Among the Dalit families, the issue of succession and inheritance rights over private property is almost irrelevant, as the majority of Scheduled Castes in rural India continue to be landless, with virtually no private property to dispute. . And when they do, surveys show that Dalit women find it more difficult to access legal or social resources due to lack of financial stability, social status and caste discrimination. Critics of India’s “progressive” gender justice movement have noted that land law reforms, like other gender-related reforms, have failed to take women from Scheduled Castes and Scheduled Tribes into account.

The work done by NGOs and advocacy groups like WGWLO has led to positive change in Gujarat, where the practice of adding a woman’s name to land records and documents while the father/husband/brother is still alive, and not after their death, was implemented. “The ultimate goal is to make land and land ownership more accessible to women and to strengthen the identity of women farmers. Why wait for the death of the male parent to give women some freedom of action? Transferring land rights to women while the male parent is still alive helps build financial agency and women’s independence from the start,” says Megha, WGWLO Communications Manager. However, change has been slow. The process requires the consent of the in-laws and families of the girls. Megha says most husbands and in-laws refuse immediately.

(This appeared in the print edition as “Such a Long Journey”)

About Wanda G. Warren

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