When the legislators in Jammu & Kashmir reiterate a law passed by Maharaja Hari Singh at the behest of Kashmiri Pandits and Dogras, to limit the inheritance rights of women so that they cannot pass their immovable ancestral property to non-Kashmiris, we read in it signs of subversion of the Constitution.
J&K women can hold all sorts of property in their own right and even sell it, if they so wish, provided they sell to a bonafide citizen of the State and not to any ‘‘outsider’’. If a J&K man marries a non-J&K resident, his wife is treated as a full-fledged citizen and can hold landed property in her name. However, a J&K woman marrying an outsider loses not only her own citizenship but even her children will be treated as ‘‘outsiders’’ and cannot inherit her property.
This is a blatant and unacceptable discrimination. But let us not forget that this discrimination is a product of the same countrywide mindset that treats daughters as paraya dhan, as burdens to be offloaded at the earliest possible opportunity, denies co-parcenary rights to daughters and considers only sons and their sons as worthy of carrying on the family line.
Most of those protesting this J&K inheritance law have shown hardly any awareness of the severe economic disabilities imposed on women of all communities in other parts of India, especially Hindus:
- The Hindu Succession Act of 1956, whose ostensible purpose was to give women equal inheritance rights, actually ended up placing severe
restrictions on women’s right to own and control property. Sons are treated as co-parceners by birth in
joint family property — that is, they become equal partners with their fathers from the day of their birth,
whereas daughters and wives are excluded. A wife or daughter has to wait for her husband/ father to die before
she can claim a much smaller share than the sons in the joint family property. For example, if a family that
is dividing co-parcenary property has two sons and two daughters, the share of the widow and the two daughters
would be about one-sixth that of the son.
- Even this share is often taken away. In most cases, daughters are forced into signing away their inheritance rights in favour of their brothers
before they are married, presumably to prevent their husbands from encouraging them to claim their share.
- Under the Hindu Succession Act, daughters are entitled to an equal share in self-acquired family property, if the father dies without making
a will. However, after 1956, very few fathers leave this world before writing their testaments in favour of
sons, and excluding daughters. This culture of disinheritance of women is an important reason why the culture
of dowry is getting more widespread.
- Andhra Pradesh, under NTR’s leadership, took the lead in amending the Hindu Succession Act and bestowing co-parcenary
rights to women. It was followed by Tamil Nadu and Karnataka. But even in these States, women are persuaded to
surrender their inheritance rights in favour of their brothers, thanks to the cultural conditioning which
views daughters as temporary members of the family.
- Land ceiling laws
systematically exclude women from inheriting land because our government laws recognise only the share of
sons as worthy of computation when a family is dividing landed property. Even today, over 70 per cent of women
live by working on the land. Their status in most cases is worse than that of wage labourers, who at least get
daily payment. Women working on their family land are neither entitled to ownership of land nor the income
accruing from it.
- States like Himachal and Uttaranchal
have upheld laws which put similar disabilities on women as the J&K law. Women in these two States lose
even their limited inheritance rights if they marry outsiders because of fears that wealthy outsiders would
take away the scenic properties, which could rake in money through tourism, from ‘‘poor and marginal’’
farmers. But no issue was ever made of this discriminatory practice because they are both Hindu-majority
- Most tribal areas, including Jharkhand and Chhattisgarh, have long had laws that prohibit the sale of land to outsiders. Under the guise of preventing land alienation, they prevent women from enjoying parity in ownership of land. Daughters and wives can claim no more than the right to maintenance from the family land. A daughter loses even that right as soon as she marries, even if the marriage does not last for more than a few days. A tribal woman who is raped by an outsider also loses her right to be maintained from family land. Single women and son-less widows are often targets of murderous violence, killed off as "witches" simply because their male relatives do not wish them to enjoy even limited usufructory rights. This disinheritance is particularly offensive considering that tribal women are the mainstay of agricultural operations and perform over 90 per cent of all tasks in farm production, with men playing a very peripheral role.
When we, at Manushi, challenged this discriminatory practice in the Supreme Court through a PIL in 1981, on behalf of several tribal women who were facing attacks because they wanted to hold on to their limited rights on the land, a large spectrum of "progressives", including many feminists, attacked our initiative, arguing that this would destroy the "tribal way of life" or that property rights were a bourgeois obsession and we should work to abolish property instead. When the Supreme Court Bench gave a majority judgement in favour of retaining the discriminatory practices, there was hardly a murmur of protest from among those sections who see the J&K Act as a betrayal of the Constitutional principles of gender justice.
I urge all those who have written passionate articles condemning the move of the J&K government as being anti-women and xenophobic to please look into your own family and community to find out how many daughters have been given equal shares in income-generating forms of parental property — houses, shops, factories, farm land; how many women have to await the death of their husband before they can claim even a small share of their joint family property; how many older women are condemned to live like hapless dependents on their sons because their husbands put all the family resources in the hands of their sons? Go talk to the widows of Vrindavan. Many are condemned to live like beggars, not because their families are too poor to feed them but because their sons threw them out after the death of their husbands.
This is not to justify the discriminatory provisions of the J&K Act but to highlight the fact that
contemporary Hindu practices are among the most discriminatory against women. And yet there is hardly any
outrage against those laws simply because legal discrimination in the majority community is not as closely
monitored. We need to move beyond emotional harangues to a serious and comprehensive re-evaluation of our
inheritance and land ceiling laws all over India to work out how we can ensure gender justice, at the same
time ensuring that already vulnerable communities do not get uprooted and further marginalised through rapid
alienation in favour of wealthy and powerful groups.
Madhu Kishwar is the editor of Manushi