FAO.org

Home > Gender and Land Rights Database > Country profiles > Countries List > National Legal Framework
Gender and Land Rights Database

India

Rights entrenched in the Constitution

The Constitution, 1949, last amended in 2011:

- Article 14: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

- Article 15(1): “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

- Article 15(3) provides for affirmative and positive action in favour of women and children by empowering the state to make special provisions for them.

- Article 39(a) ensures right to adequate means of living for men and women, and the right to [d] equal pay.

- Article 39A: “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”

- Article 42 states that the State makes provision for securing just and humane conditions of work and for maternity relief.

- Article 44 states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

- Article 297(1): “All lands, minerals and other things of value underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic zone, of India shall vest in the Union and be held for the purposes of the Union.”

- Article 298 states that the executive power of the Union and of each State comprises the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose.

- Article 300A: “No person shall be deprived of his property save by authority of law.”(16)

Women's property and use rights in personal laws

Personal laws vary according to religion. The 1955 Hindu Marriage Act and the 1956 Hindu Succession Act govern the Hindus. The 1937 Muslim Personal Law Shariat Application Act and the 1986 Muslim Women’s Protection of Rights on Divorce Act govern Muslims. Christians and Parsis are governed by the Christian Marriage Act and the Parsi Marriage and Divorce Act (13).

The Hindu Marriage Act, 1955 amended in 2001:

- Article 5 states that a marriage may be solemnized between any two Hindus who willingly consent to marriage, are not already married and have reached the age of 21 for the groom and 18 for the bride.

- Article 7(1): “A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.”

- Article 10(1) states that either party to a marriage, whether solemnized before or after the commencement of the Act, may petition for a decree for judicial separation on any of the grounds of adultery, cruelty, desertion, conversion to another religion and mental disorder.

- Article 13B provides for divorce by mutual consent when a petition for dissolution of marriage by a decree of divorce is presented to the district court by both the parties to a marriage.

- Article 17 states that any marriage between two Hindus is void if, at the date of such marriage, either party had a husband or wife living; the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly.

- Article 27: “In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.” (17)

The Muslim Personal Law (Shariat) Application Act, 1937:

- Article 2 states that Muslim Personal Law Sharia applies to all Muslims in all questions, save those relating to agricultural land, regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage and dissolution of marriage (17).

The Dissolution of Muslim Marriages Act, 1939:

- Article 2 states that a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on the following grounds: disappearance of the for a period of four years; neglect or lack of maintenance for a period of two years; husband’s imprisonment for a period of seven years or upwards; failure of performing marital obligations for a period of three years.

- Article 5: “Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.” (17)

 The Muslim Women Protection of Rights on Divorce Act, 1986:

- Protects the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands and provides for all connected matters.

- Article 3 (1) entitles the divorced Muslim woman to [a] “a reasonable and fair provision and maintenance” to be made and paid to her within the idda period by her former husband; [b] maintenance for children in her custody born before or after the finalisation of the divorce; [c] any outstanding dower, and [d] any property given her before or during marriage by her relatives or friends or the husband or any relatives of the husband or his friends (17).

The Indian Christian Marriage Act, 1872:

- Article 27 states that all marriages solemnized between persons one or both of whom professes or profess the Christian religion shall be registered (17).

The Indian Divorce Act, 1869 amended in 2001:

- Governs divorce among Christians

- Article 10 states that the husband may petition for divorce on the grounds that his wife has been guilty of adultery. A wife may petition for divorce on the grounds that the husband has changed his faith from Christianity to another religion or has contracted marriage with another woman, has been guilty of adultery, or bigamy, or rape, sodomy or bestiality, or of adultery coupled with cruelty, or of adultery coupled with desertion for two years or upwards

- Article 24: In every case of judicial separation under this Act, the wife shall be considered as unmarried with respect to property which she may acquire, or which may come to or devolve upon her. Such property may be disposed of by her in all respects and in case she dies intestate, go as the same would have gone if her husband had been then dead

- Article 30 states that if the husband, or any creditor seizes any property of the wife, he shall be liable, at the suit of the wife, to return or deliver to her the specific property, and also to pay her a sum equal to double its value (17)

The Parsi Marriage and Divorce Act, 1936 amended in 2001:

- Article 6 provides that every marriage under this Act shall be registered.

- Article 32B states that a suit for divorce may be filed by both the parties to a marriage on the ground that they have been living separately for one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

- Article 34 states that any married person may sue for judicial separation on any of the grounds for which such person could have filed a suit for divorce.

- Article 42: “the Court may make such provisions in the final decree as it may deem just and proper with respect to property presented at or about the time of marriage which may belong jointly to both the husband and wife.” (17).

The Special Marriage Act, 1956 provides for compulsory registration of marriages irrespective of religion (18).

The Married Women’s Property Act, 1974 Article 4 provides for married women’s earnings to be their separate property (17).

The 1867 Portuguese Civil Code, applicable to the residents of the state of Goa and the union territories of Daman and Diu, is the only law that accords wife effective rights to the property of her husband during marriage. (19).

The Equal Remuneration Act, 1976 ensures equal wages for equal work including women (18).

Inheritance legal mechanisms

The Indian Succession Act, 1925 amended in 1991: 

- It governs all people registering civil marriage under the 1956 Special Marriage Act (13).

- Article 32: “The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules” specified in the Act.

- Article 33 provides that the widow gets on third and the children two thirds of the estate. If there are no children, the widow gets one half and the other half goes to the kindred of the deceased. If there are neither kindred nor children, the widow gets the whole property.

- Article 59 states that every person of sound mind not being a minor may dispose of his property by will (17).

The Hindu Succession Act, 1956 amended by the Hindu Succession (Amendment) Act, 2005

- It codified the Hindu Personal Law into statutory law, which applies to Hindus, Sikhs, Jains and Buddhists (13).

- Article 6(1): the daughter of a coparcener shall i. by birth become a coparcener in her own right in the same manner as the son; ii. have the same rights in the coparcenary property as she would have had if she had been a son; iii. be subject to the same liabilities in respect of the said coparcenary property as that of a son.

- Article 6(2): Any property to which a female Hindu becomes entitled shall be held by her with the incidents of coparcenary ownership and shall be regarded as property capable of being disposed of by her by testamentary disposition.

- Article 6(3)(a) provides that the daughter is allotted the same share as is allotted to a son.

- Article 10 states that the property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules: i. The intestate’s widow, or if there are more widows than one, all the widows together, take one share. ii.. The surviving sons and daughters and the mother of the intestate shall take one share.

- Article 14(1): Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner.

- Article 30 states that any Hindu may dispose of by will or other testamentary disposition any property in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus (17).

- In case of testamentary succession, the act grants testators absolute freedom of will, i.e. no necessary inheritance share is reserved for family members. This provision is in practice often used to disinherit widows and daughters (13).

Muslim Sharia law:

 The Muslim Personal Law (Shariat) Application Act, 1937:

- Article 2 states that Sharia law shall apply to intestate succession and personal inherited family property of females between Muslims (17)

- Explicitly excludes inheritance of agricultural land from the scope of the Act. However, Some states have extended the Act to agricultural land (13).

- Women’s inheritance share is half of that of a man in the same succession position.

- While Islamic law restricts women’s inheritance, it does entitle women to direct inheritance rights (13).

Land Legislation

- Article 246 of the Constitution gives the states exclusive power to make laws for their territories (16). The autonomy of the states has translated into a significant degree of variation across states and over time both in terms of the number and type of land laws and regulations enacted. Since it not possible to list the multitude of state land laws, the categories of laws and their main features are instead provided.

Land laws can be roughly divided into four main categories:

> Laws to regulate tenancy contracts.

> Laws to abolish intermediaries who worked under zamandari feudal lords to collect rent. Most states passed legislation to abolish intermediaries prior to 1958.

> Laws to implement ceilings on land holdings, in order to redistribute land in excess of such ceilings.

>  Acts to consolidate disparate holdings (20).

- Tenancy reform acts were enacted by various states between 1960 and 1972. Although national policy guidelines were given, the resulting reform laws varied extensively across states:

> In Andhra Pradesh, leasing is permitted but regulated. In Telangana region leasing out land by large holders is prohibited. 

> In Assam, there are no restrictions on leasing out land.

> In Bihar, leasing out is prohibited except for people with disability. Public servants with a salary not exceeding Rs250 are included under exempt category.

> In Gujarat, leasing is prohibited and unauthorized leasing is punishable offence with a fine up to Rs1000.

> In, Punjab and Haryana, there is no ban on leasing and the tenants do not acquire any rights on land.

> In, Tamil Nadu, leasing is permitted but the law stipulates that every contract should be in written form. A copy of the document shall be deposited with the revenue officials. 

> In Uttar Pradesh, lease for any period is prohibited. Exemptions are allowed for widows, unmarried women, military people, students and physically disabled (12).

- Legislation providing for ceilings on agricultural holdings was enacted in two phases: 1955-1972 and 1972-present. The second phase attempted to tackle some of the loopholes of the first sets of laws in terms of retrospective transfers, exemptions and criteria for fixing ceilings. In 1972, national guidelines on legislation providing for ceilings on agricultural holding were issued. As a consequence, all the states modified or enacted their own laws (12).

- As for calculation of ceilings, the legislation usually fixes a land ceiling for each household of up to five members and allows additional land for larger households, considering adults and children as separate units. However, in many states, such as. Bihar and Andhra Pradesh, only adult sons, and not daughters, can be counted as separate units. Kerala is an exception, as it allows both unmarried adult sons and daughters to be considered as separate units (13).

Policies/Institutional mechanisms enforcing or preventing women’s land rights

The Department of Women and Child Development, established in 1985 and upgraded to a full Ministry in 2006, “formulates plans, policies and programmes; enacts/ amends legislation, guides and coordinates the efforts of both governmental and non-governmental organisations working in the field of Women and Child Development” (21).

The National Commission for Women, established in 1992 under the 1990 National Commission for Women Act, is mandated to safeguard the rights and legal entitlements of women by ensuring constitutional guarantees of equal status to women, reviewing the existing legislations, recommending suitable amendments and providing a forum for women. Several states have set up similar state commissions for women to act as ombudsmen for women in the States. As of 2005, State Commissions for Women had been constituted in 20 out of 28 States and 7 Union territories (18).

The National Policy for the Empowerment of Women of 2001 prescribes that efforts be made to ensure that benefits of training, extension and various programmes reach women engaged in agriculture in proportion to their numbers. The policy also provides that the programmes for training in soil conservation, social forestry, dairy development and other occupations like horticulture, small animal husbandry, poultry, fisheries be expanded to benefit women workers in the agriculture sector (21).

The policy also seeks to encourage changes in personal laws such as those related to marriage, divorce, maintenance and guardianship so as to eliminate discrimination against women, with the initiative of and with the full participation of all stake holders, including the community and religious leaders (18).

As a result of the Government’s commitment to encourage amendments in legislations relating to ownership of property and inheritance, the Hindu Succession Act, 2005 was amended to enable daughters to inherit ancestral properties (18).

Efforts have been made to redress the gender imbalances in land distribution programmes through the provisions contained in several five year plans:

>  The 1980-1985 Sixth Five Year Plan, provided for joint titles to spouses; however, this policy was not confirmed in the 1985-1990 Seventh Five Year Plan. 

>  In the 1992-1997 Eight Plan, 40 percent of forfeited land was allocated to women, and the remaining land to both spouses through joint titles. 

>  The 1997-2002 Ninth Plan had a women’s land rights section and provided for land titles mainly distributed to women through women’s groups or individually (13).

>  The 2002-2007 Tenth Five Year Plan aimed at ensuring effective implementation of land reform legislations setting ceiling so as to guarantee the distribution of surplus land to women (22).

>  The 2007-2012 Eleventh Five Year Plan agenda for women in agriculture aims at ensuring effective and independent land rights for women and strengthening women’s agricultural capacities.

The Plan will ensure direct transfers of land to women through land reforms, anti-poverty programmes, and resettlement schemes. It will include individual or group titles to women in all government land transfers, credit support to vulnerable women to purchase or lease land, records and legal support for women’s inheritance rights, incentives and subsidies on women owned land (22).

The Government has been issuing Joint Pattas or title deeds in the names of both husband and wife, thereby making women joint-owners of land. Efforts are being made on a pilot basis to improve women’s access to land by providing community wasteland, fallow land, surplus land to women’s self help groups on long-term lease basis and to promote joint pattas. Under these schemes, 4 200 acres of surplus/fallow land have been provided to 2 206 women groups. In Orissa, 355 acres of land allotted to 903 women members have been registered under joint patta. Furthermore, state interventions released approximately 1 000 acres of land mortgaged to money-lenders by women (18).

In 1972, the National Guidelines on Ceiling on Agricultural Holding were issued by the Conference of Chief Ministers on Land Reforms to encourage the adoption of a uniform definition of family for the purpose of land ceiling legislation (13).

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