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Gender and Land Rights Database

India

Customary norms, religious beliefs and social practices that influence gender-differentiated land rights

- Traditionally among matrilineal communities post-marital residence is matrilocal and daughters have stronger claims in land, as in Kerala and Meghalaya. In contrast, in patrilineal communities, post-marital residence is patrilocal and often in another village. In addition, in the north, close-kin marriage is forbidden among most communities and there are social taboos against parents asking married daughters for help during economic crises.

- Many of these customs continue today, especially among upper-caste Hindus of the northwest who consider endowing or bequeathing a daughter with land as losing it to the family. Opposition is less strong in the south and the northeast of India where in-village and close-kin marriages are allowed, and parents can, if they need to, seek support from married daughters.

- Marriages in distant villages also make direct cultivation by women difficult due to the practice of purdah or veiling which reduces a woman’s mobility and participation in activities outside the home (14).

- The ideology of female seclusion is more widespread than the actual practice of purdah, restricting women’s contact with men in public and private space. Indeed in many north villages, there are spaces where men congregate which women are expected to avoid, such as the market place (14).

- Several customary practices, such as dowry, devadasi - a religious practice in which women are married to a deity or temple - child marriage and selective sex abortion are still in use in some part of the country reflecting the prejudices that affect women (18).

Traditional authorities and customary institutions

Customary village councils (CVC), found in almost every village, are informal governance local institutions, the structure and activities of which vary from village to village. However, they all have identifiable members, called panchas, and are organised by a leader who is generally known as Yajamana.

CVCs meet in public in defined locations to discuss, debate and sometimes to decide on village issues, following established procedures. CVCs’ main functions include: disputes resolution, organising religious activities, engaging in social welfare activities. Furthermore, CVCs are taking on new roles, especially developmental and electoral roles.

CVCs are only marginally involved in decisions affecting land rights. They do sometimes adjudicate over inheritance, encroachment and other land disputes. If they do not resolve to the satisfaction of both parties, then they advise to approach the formal institutions.

CVCs are widespread in rural India and interact closely with the formal, elected local councils called Gram Panchayts. Membership is structured by gender and caste. Virtually all panchas are men and are usually the leaders of individual caste groups at the village level (23).

Inheritance/succession de facto practices

In most of the country, inheritance is traditionally patrilineal, property being passed through the male line, with some limited matrilineal communities, as in northern and central Kerala in the south and Meghalaya in the northeast.

In general, among most Hindus, women inherit only in the absence of male heirs, typically in the absence of four generations of men in the male line of descent. Widows have the first claim and daughters follow. However, women do not receive full ownership rights; rather they enjoy usufruct during their lifetime after which, the property reverts to the original source. Furthermore, women traditionally cannot dispose of property and cannot mortgage, give, or sell the land, except in exceptional circumstances.

In most cases, the rights of Muslim women in customary practice are very similar to those of Hindu women, in spite of the fact that under Sharia women are granted a share of inheritance.

In practice, women rarely inherit land both as daughters and wives. When they do inherit typically their shares are not recorded formally in the village land records. Where the land is so registered, the widow’s name is entered jointly with that of adult sons, who in effect control the land. As a matter of fact, widows without sons rarely inherit. A widow’s share is for her maintenance and not for her direct control or use.

Additionally, many widows do not claim their rights over land or relinquish their shares in parental land in favour of brothers. Women see brothers as an important source of security, especially in case of marital breakup. Where women do not voluntarily forgo their inheritance claims, male relatives have been known to file court cases, forge wills, or resort to threats and even physical violence (14).

Discrepancies/gaps between statutory and customary laws

- The Hindu Succession Act of 1956 made sons, daughters and widows equal claimants in a man’s separate property and in his share in the joint family property. It also gave women full control over what they inherited, to use and dispose of as they wished. However, most patrilineal customary practices hamper women’s access to inheritance. When widows do inherit, they mostly enjoy use rights over land and cannot dispose of property. Similarly, while Muslim women under Sharia are entitled to a share of the property; usually, customary practices, which preclude them from inheriting land, prevail (14).

 - Although amendments to statutory norms on succession gave women equal rights to inheritance, the Muslim Personal Law Sharia Application Act of 1937 excluded all agricultural land, and the Hindu Succession Act exempted tenancy rights in agricultural land from its purview. Women’s inheritance in tenancy land thus depends on state-level tenurial laws, which in most northwestern states specify an order of devolution that favours male heirs. Women come very low in the order of heirs, as is in the case of customary norms. Furthermore, in most cases, agricultural land, unlike other property, continues to devolve according to customs (14).

- Although the Hindu Succession Act of 1956 states that sons and daughters have equal shares in a man’s separate property, according to inheritance laws of most states, in the case of coparcenary property, which is the joint family property, only sons and not daughters have rights by birth. In 2005, the Hindu Succession Act of 1956 was amended to include daughters as coparceners. The states of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have also amended this provision. Kerala has abolished joint family property altogether (14).

In the case of Muslim law, differential shares arise because daughters are allowed only half the share of sons in any property (14).

- Although consent is a legal requirement for a valid marriage under the Hindu Marriage Act, 1955 (as amended) in practice women have hardly any say as to the choice of the partner and whether or not they want to marry (18).

- The practice of dowry is still in use in many areas, notwithstanding the Dowry Prohibition Act of 1961, amended in 1986, prohibits dowry and penalises the giver, taker and the persons demanding and encouraging it (18).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography