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Published : January 31, 2013 | Author : rajendrakumar
Category : family law | Total Views : 16144 | Rating :

Dr.Rajendrakumar Hittanagi,Assistant Professor,Govt Law College Hassan Karnatak

Women’s Right to Property with Emphasis on Land Rights and Its Role in empowering Women

There is always link between status of a person and his/her property. Law confers the right to property on person subject to fulfillment of certain conditions. Earlier there were inherent inequalities in the inheritance laws. Now they have been removed to certain extent. Even though women may be vested with legal rights, if they failed to assert them, the goal of empowerment remains unfulfilled. It is well established that land rights in women will enhance their efficiency, welfare and decision making power. Land rights can mainly be acquired from the state, the family, and the market. Apart from legal, there are certain socio-administrative obstacles to the access of land particularly for women. This paper assesses progress towards gender equality and women empowerment through women’s control over land.

The right to own a property plays a vital role in conferring status on a person in the society. A woman gets empowered if she has control over the property. The questions relating to women’s empowerment have now become critical to the human rights based approaches to development. Since the1990’s women have been identified as key agents of sustainable development and women’s equality and empowerment are seen as central to more holistic approach towards establishing new patterns and process of development that are sustainable.Some define empowerment as a process of awareness and conscientization of capacity building leading to greater participation, effective decision making power and control leading to transformative action. The constitution of India guarantees equality before law and equal protection of law,and also confers special status on women.Even after the lapse of 62 years of our country becoming republic, the issue of women empowerment remains to be critical. The Cairo Conference in 1994, organized by the United Nation on Population and Development called the attention to the women’s empowerment as a central focus. The World Bank has suggested that empowerment of women should be a key aspect of all social development programmes.

This paper tries to consider the issue of gender and land rights in India and outlines the constraints to land access through the state, the family and the market. It reiterates the reasons why independent land rights continue to be important for women’s welfare, efficiency and empowerment.

Meaning of the term ‘Property’
The term property is used in different senses. In its widest sense, property includes all a person’s legal rights, of whatever description. A man’s property is all that is his in law. Locke tells us that ‘every man has a property in his own person and he speaks of a man’s right to preserve his property, that is, his life, liberty, and estate. This usage, however, is obsolete at the present day. In a second and narrower sense, property includes only proprietary as opposed to personal rights. In a third sense property includes not even all proprietary rights, but only those which are both proprietary and in rem. In the narrowest sense, property includes nothing more than corporeal property that is to say, the right of ownership in a material object, or that object itself. The term property is defined by Ahrens as ‘a material object subject to the immediate power of a person. Thus the concept of property has wider implications.

Discussion relating to women’s legal rights in property can be raised under the inheritance law which falls within the purview of personal laws. Personal laws are applicable on the basis of religion for e.g. the Hindu Succession Act (HSA), 1956 is applicable only to Hindus. Under the HSA, 1956 a Hindu women is entitled to inherit the property. After the commencement of the Hindu Succession (Amendment) Act, 2005, a Hindu daughter is conferred upon equal rights as that of a Hindu son.

Land is a critical source of livelihood
In agrarian economies such as India, agriculture land is a critical source of livelihood. Majority of the agriculture land is owned privately. Women contribute substantially to agriculture and to domestic food security. Yet they are denied effective rights to own or control the land that they cultivate and on which they and their families are dependent for subsistence. Women remain unwaged and invisible workers on family farms or underpaid workers of the farms of others. As an increasing number of men move to non farm jobs it is women who remain in agriculture. But even among the large and growing body of de facto female headed households in India few have direct access to land in their own rights.

Women need independent rights in land for many reasons: to enhance theirs and their family’s welfare, for increasing farm productivity and for their overall empowerment. The insecurity which a woman feels when owning no productive asset, places her in an extremely vulnerable position at home and in the community. Studies show that women’s independent land rights and control can enhance food security, improve child nutrition, health and education, and even reduce domestic violence.Women who own land feel greatly empowered and self-confident and have more voice both within the home and in the community. They are also better able to get their dues from government schemes and institutions. All this enhances their economic and social security. Even if the land possessed by the household is limited and unirrigated, it can still contribute to enhancing economic security to poor women via both farm and non-farm enterprises. While other factors are also involved in this, land ownership is the critical factor.

There is a relationship between the risk of rural poverty and land access. This relation is in the negative. Land can provide both direct and indirect benefits. Direct advantages can stem from growing crops or fodder or trees. Indirect advantages can take various forms: owned land can serve as collateral for credit or as a mortgage able or saleable asset during a crisis. But land access by men alone cannot be assumed to benefit women and children equitably. The significant body of evidence that has emerged over the years shows systematic gender inequalities in access to basic necessities within the households. Women and children’s risk of poverty can thus depend crucially on women’s direct access to income and resources, not just access mediated through husbands or male relatives. In addition, owning land would enhance women’s self-confidence and ability to demand their due in government programmes, such as for health care and education.

There is a growing evidence of links between assets in women’s hands and child welfare. Children in rural India are found more likely to attend school and receive medical care if the mother has assets. For widows and the elderly, owning land could improve welfare not just directly, but also by enhancing their entitlement to family welfare. Relatives, including sons, often do not provide the expected economic security. Many widows and the elderly thus end up living on their own, and in poverty. As some argue, if they had property children would look after them better.

It needs emphasis that access to even small portion of land is essential for women’s livelihood. A small plot can be a critical element in a diversified livelihood system and can significantly reduce the risk of poverty and food insecurity. Some land is usually necessary even for viable rural non-form activity.

Production inefficiency associated with tenure insecurity continues to be one of the important rationales for land reform. But the rationale has not been extended to cover family members. There is an effect of secure rights in land and control over its produce on the farmer’s motivation to put in greater effort and investment in the land. This important effect has received little attention in relation to family members. This is presumably because the family members are assumed to put in their best efforts, even if the land is owned by the male household head, due to family loyalty and or because the benefits would be distributed equitable. But there is no guarantee that the benefits would be distributed equitably. If land access is through tittles, it would enhance women’s ability to raise production by improving their access to credit.

Let me take up the aspect of empowerment. The parameters of empowerment are complex and multi-dimensional. As outlined in Agarwal (1994), land rights can make a notable difference to women’s bargaining power within the home and community, enhance their confidence, and sense of self-worth, enable them to negotiate better deals in the wage labour market, increase the respect they command within the community, facilitate their participation in village decision-making bodies, and so on. Empowerment in one or more of these forms has emerged wherever social movements or NGOs have helped women gain access to land. After purchasing land with the help of Deccan Development Society, a grass root group, poor dalit woman in A.P. could say:

‘Now even the government is following us. Not because they love women but because they know that loans for land are safer with women. Having land in women’s name has made an enormous difference –learning to take on land means taking on more power and wisdom. Once we got land our eyes opened’. (Narsamma, Kalbaman Village, cited in Hall 1999)

There are three main sources of arable land: the state, the family, and the market. Consider first, state transfers.

The State
The state distributes land in various ways:
(1) as a part of traditional land reform measure,
(2) in resettlement schemes as compensation for land lost due to displacement,
(3) as a poverty alleviation measure.

All these measures of distribution are, however, gender biased. The government allots land to male household heads. In addition, adult sons often get special consideration, but adult daughters seldom do.

The family
In India today, majority of the arable land is private. About 78 per cent of rural households own some land. Hence a very large percentage of rural women have a stake in family land, access to which is mainly through inheritance. Let me consider the issue of land inheritance. Unfortunately, no large scale rural surveys collect gender-disaggregated data on land ownership and use. In 1991, a survey on widows by development sociologist Marty Chen, shows that few women inherit land; even fewer effectively control any. The survey finds out that 87 per cent of the women did not receive their due as daughters. If we try to find out the obstacles for women in realizing their claims in family land, we will mainly get three sources of obstacles.

They are partly legal and in large part social and administrative. Women enjoy much greater inheritance rights today than they did early. The inheritance laws of both Hindus and Muslims treat agriculture land differently from the other property. For instance, the Hindu Succession Act (HSA), 1956 exempted tenancy rights in agricultural land from its purview. Women’s inheritance rights in tenancy land thus depend on state-level tenurial laws. In the southern, western and eastern states, since the tenurial laws are silent on devolution it can be presumed that for Hindus the HAS will also apply to tenancy land. In Uttar Pradesh (UP) and Delhi, the definition of tenants in the land reform laws is so broad as to include under that category interests arising from all agricultural land. Hence in these two states, women’s inheritance rights in most agricultural land stand severely curtailed.

Prior to the commencement of HSA (Amendment Act) 2005, only sons were having birth rights in the Mitakshara joint family property. Thanks to the Law makers for abolishing this inequality in law. Under the Muslim law also there is the inherent inequality of daughters being allowed only half the share of sons.

Many women forego their shares in parental land in favour of brothers. In the absence of an effective state social security system, brothers are seen as an important source of security, especially in the case of marital break-up. Cultural constructions of gender, including how a ‘good sister’ should behave, also discourage women from asserting their rights. These constraints are compounded by the unhelpful approach of many government functionaries who share the prevalent social biases and often obstruct the implementation of laws in women’s favour.

The market
The third source of land is through the market. In India, purchasing agricultural land is a limited option, since little is usually available for sale. Hence market purchase is not an option that can compensate women for the inequalities in inheritance or government transfers. But it can supplement those means. Market access could improve if women dealt with land markets not as individuals but as a group, pooling their resources and their negotiating power.

In Conclusion
In the light of Millennium Development Goals, women have been conferred with rights to property all over the world. In India also the issue of women’s access to property including access to land is given critical attention. The existing literature indicates that the right to property is likely to have positive effects on women’s and their family’s welfare, agricultural productivity, poverty reduction and women’s empowerment. While all channels for women’s economic empowerment, including non-farm employment and various self-employment enterprises need pursuing, these latter channels alone cannot realistically help more than a small percentage of women, especially in countries such as India, where majority of rural women workers are still dependent on agriculture as their main source of livelihood. For improving the implementation of women’s inheritance claims and for trying out some of the alternative arrangements for land management, the southern and western states of India could be starting points, since in these states both laws and the social context are relatively more favourable to women. Success in these states could have significant effect in other areas as well. The Constitutional goal of gender equality and women empowerment can be achieved, if there is a collective effort from all sections of the society.
# Handy Femida and Kassam Meenaz, “Women’s Empowerment in Rural India” available at www.istr.org/conferences/toronto/working papers/handy.femida.pdf (accessed on March 17, 2011 )
# Chandra Rakesh, “Women Empowerment in India-Milestones and Challenges”, available at www.empowerpoor.org/downloads/women empowerment.pdf (accessed on March 13, 2011 )
# See. Art 14, of the Constitution of India.
# See. Art 15, of the Constitution of India.
# Supra n.1 at.3
# Fitzgerald P.J, Salmond on Jurisprudence, Universal Law Publishing Co.Pvt Ltd, New Delhi,(2003) at 411
# Id.at 412
# Agarwal,B., A Field of One’s Own: Gender and Land Rights in South Asia, Cambridge University Press, Cambridge,(1994)
# Study on Status of Women & Agriculture Land Ownership in Gujarat, by Working Group for Women and Land Ownership-Gujarat, (2004) at 5
# See, Supra.n.8
# Agarwal,B., Gender and Land Rights Revisited: Exploring New Prospects via the State, Family and Market, Journal of Agrarian Change,Vol.3(1&2),2003 at 194
# Strauss,J and Beeegle,K, Intrahouse Allocations: A Review of Theories, Empirical Evidence and Policy Issues, MSU International Development Working Paper No.62, East Lansing, Department of Agriculture Economics,Michigan State University(1996).
# Caldwell,J.C., Reddy.P.H. and Caldwell.P. The Causes of Demographic Change: Experimental Research in South India, The University of Wisconsin Press, Wisconsin (1988)
# Supra.n.12 at 195
# Id.at 197
# Id.at 202

Authors contact info - articles The  author can be reached at: rajendrakumar@legalserviceindia.com

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