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A home of her own

By Bina Agrawal

Women’s rights in property, when effectively implemented, can give them a stronger sense of identity and social protection. “We had tongues but could not speak. We had feet but could not walk. Now that we have land we have the strength to speak and walk,” said women in Bihar

For women, effective rights in property are critical, not just for their economic wellbeing but also for their political and social empowerment. Effective rights mean rights not just in law but also in practice, and rights which enable women to exercise control over property. We also need to bring into our discussion property which could be owned or managed by a group of women, rather than only individually owned or managed assets.

The importance of land rights for women

In India’s predominantly agrarian economy, where nearly 58% of the population is still dependent on agriculture, land remains the single most important form of immovable property. In urban India, the equivalent would be, say, a house. Let us examine why women’s command over such property is so important.  

For the vast numbers still living in villages, land remains the mainstay of livelihoods. It is the primary factor of production and the main source of income and welfare for millions of families. There is also a strong correlation between landlessness and rural poverty. Even a small plot can protect a family from destitution by providing supplementary income. Secure land access reduces the risk of poverty and enhances food security. Also, those owning some land can negotiate a higher wage in the labour market, since they have something to fall back on and hence greater bargaining power than the landless.

These benefits of possessing land are compounded for women, who are even more dependent on agriculture than men since men have been increasingly migrating to non-farm jobs, leaving their families behind. Land in women’s hands not only enhances their own livelihood options, but also the welfare of their families. Many studies from across the developing world find that women tend to spend a larger proportion of their income from employment or assets on family needs, especially children’s needs, than men. Productive assets such as land in women’s hands are found to significantly enhance prospects for child survival, education and health.

Access to land can also increase household food security in indirect ways, such as by providing domestic fuel. A plot of land with a tree or two can provide firewood (the most important cooking fuel in rural India) and crop waste, which is also used for fuel.

An additional and striking finding from research I did with a colleague a few years ago is the security against domestic violence that owning an immovable asset such as land or house can provide. We studied 502 ever-married women in the 15-49 age-group in rural and urban areas of Thiruvananthapuram district in Kerala, and found that the incidence of spousal physical violence was 49% among those who owned neither land nor house, but only 7% among those who owned both; and 10% and 18% respectively for those who owned only a house or only land. In other words, owning immovable property deterred violence. The centrality of such protection held strong even when we controlled many other factors which could affect women’s risk of spousal violence, such as her and her husband’s educational and employment status, the household’s economic position, the husband’s alcohol abuse, both spouses’ childhood exposure to violence, and so on.

However, being employed (except in the formal sector) did not protect women against violence. In fact, where the woman was employed and the man was not, or she was better employed than him, she faced a higher risk of physical violence. There was no such perverse effect with property: a propertied woman married to a propertyless man faced less and not more violence. Spousal differences in employment status tend to have a perverse effect because husbands often get irked at their wives outperforming them. Moreover, employment does not automatically give a woman a credible exit option, if violence does occur. She may not earn enough to leave a violent spouse, or may not easily find another place to live. With land or a house of her own she has somewhere to go, or she can ask him to leave if they are living in her house.

Apart from welfare benefits, given the feminisation of agriculture, secure land rights for women are necessary for increasing farm output. About 40% of agricultural workers in India are women but their productivity is seriously constrained by their lack of access to land, credit (for which land can serve as collateral), inputs, technical information, and so on. Without land titles, women are not even seen as farmers and seldom benefit from the many government schemes meant for small and marginal farmers. With land they can better access such schemes as well as essential productive inputs such as improved seeds and fertilisers, crop-related information, and markets. According to the FAO’s 2011 State of Agriculture Report, reducing the constraints faced by women farmers in developing countries could raise their farm yields by 20-30% and raise country-level total agricultural output by 2.5-4%, thus making a significant impact on food security.

Often the arguments for women’s rights are made only in terms of gender equality. Indisputably, gender equality is central to creating a just and fair society. But in order to convince policymakers that women need to have land in their own right, we need to draw on multiple arguments, including the potential benefits of gender equality in access to land on agricultural productivity and economic development.

Inheritance rights

Women can gain access to land in many ways: via inheritance, through the state, or through the market. Of these, inheritance is especially important since almost 86% of arable land in India is privately owned. It is sometimes argued that granting daughters equal inheritance rights will fragment landholdings and so reduce farm productivity. There are two problems with this argument. First, fragmentation can occur even when several sons inherit. Hence this cannot justify privileging one sex over another. Second, the unit of ownership (however fragmented) need not be the unit of cultivation. Families often continue to farm together, even when they individually own only a part of the land. And land can be consolidated in many other ways, including by groups of women pooling their plots and cultivating them jointly, as has been happening for many years now in parts of Andhra Pradesh and Kerala.

Another argument that is sometimes made against giving daughters land is that women leave their parental home after marriage and cannot take their land with them. But sons also leave the village for urban jobs. Yet they retain their rights to parental land, which their relatives cultivate for them. Women can make similar arrangements if they inherit land: they can lease it out to their brothers or to someone else, or sell the land and use the receipts to buy a plot in their marital village. Several women from Andhra Pradesh and Kerala recently told me that those were precisely the options they had exercised with the land they had inherited from their parents.

In the Lakshadweep Islands and in Sri Lanka, women in some communities traditionally inherited trees. Women in the Kandyan highlands of Sri Lanka, for instance, told me that their brothers would periodically send them a share of the harvest from the coconut trees they had inherited. In fact, in both Kerala and Sri Lanka, women have customarily had strong rights in landed property. It is no coincidence that these regions also have the best human development indicators in South Asia, although my research on domestic violence strongly suggests the need to probe below the averages as well. Women’s rights in property, when effectively implemented, along with cultural norms that favour post-marital residence within or near the parental village, can jointly serve as important sources of social protection for women. Land also gives a person a stronger sense of identity and citizenship.

Indeed, even simply getting a title to land can be greatly empowering for women in a context where they have none. This is wonderfully encapsulated in the words of women who received land titles for the first time, after a long struggle, through the Bodh Gaya movement in Bihar in the late-1970s. As cited by the movement’s activists, they said: “We had tongues, but could not speak/We had feet, but could not walk. Now that we have land we have the strength to speak and walk.”

The historical context

Historically, in India, we get a mixed picture of women’s rights in property, as I have elaborated at length in my book, A Field of One’s Own. At the outset, it is important to emphasise that Indian women have always had some rights in property, but these rights were mediated by two important factors: one was the distinction made between movable and immovable property, the other was women’s regional location.

The distinction between movable and immovable property has been (and continues to be) of great importance, and is ancient. It was central to the debates on women’s rights in property as laid out in the Dharmashastras. Women in patrilineal communities (which covered most of India) had important rights in movable property, such as jewellery, clothes, household effects, etc, given to them as stridhan at the time of marriage. But they rarely received land or the ancestral home. Movable property, however, does not bring the same benefits as immovable property. It can be taken away by in-laws, or sold by the husband in a crisis (for example, famine literature indicates that women’s jewellery is often sold off first, while the husband retains his plot of land, leaving a woman vulnerable to being abandoned). Also, as noted, it is immovable property which provides economic and social protection to women in situations of marital conflict.

Within the overall limitations on women to rights in immovable property, however, there were historically important geographic and community variations. To begin with, notwithstanding scriptural prescriptions, women in south and west India did occasionally own land in practice. There is evidence dating from the 10th to the 17th centuries, for instance, of women (especially widows) donating land to temples in south India. But they did not have full control over the property to use as they wished. The donations were for the spiritual benefit of the deceased, such as husbands. The idea that a woman should have independent rights over immovable property, which she can bequeath, sell, mortgage, or use as she wishes is a relatively modern one.

Another major geographic variation stemmed from the presence of matrilineal communities in parts of India, notably in the south (especially Kerala) and the northeast (in present-day Meghalaya). Here, women inherited immovable property although their control over it was often mediated through male relatives. Also, such matrilineal communities typically practised cross-cousin and within-village marriages so that the land remained within the extended family and could be supervised by it.

Even these traditions, however, began to erode during the colonial period, especially with changes in the law brought about by the British in the early-20th century. Among Kerala’s Nayars, for instance, a range of enactments which changed marriage and estate laws circumvented women’s rights in property and their social freedoms. Importantly, the legal changes were neither discussed with the women in these communities, nor were the petitions they submitted seeking protection of their rights given due attention.

At the same time, the early-20th century also saw the emergence of a number of women’s organisations demanding stronger inheritance rights for women in a predominantly patrilineal context. This was one of the central issues taken up by organisations such as the All-India Women’s Conference and the Women’s Indian Association. In A Field of One’s Own I trace the history of that period in detail, and will not repeat it here. But an important part of that history was the setting up by the government of the Rau Committee in the 1940s. The committee’s recommendations were quite radical for its time. It recommended enactment of a Hindu Code with provisions for stronger inheritance rights for women, more liberal divorce laws, etc. Encapsulated in the Hindu Code Bill of 1947, the provisions were widely debated in the Legislative Assembly. Both Dr B R Ambedkar and Jawaharlal Nehru were committed to the bill but it was deferred till after the first general election of independent India of 1951, because of resistance from conservative elements within the Congress. 

As finally passed, the original elements of the Hindu Code Bill were unpacked and enacted in four separate Acts, including the Hindu Succession Act (HSA) of 1956 which dealt with inheritance. In retrospect, I think it was actually very helpful that there were four separate Acts, since this made it easier to subsequently reform the HSA in women’s favour. For instance in 2005, when I worked for the amendment of the HSA to make it gender-equal, the chances of success would have been greatly diminished if issues of succession had got enmeshed with issues of marriage and divorce.

The situation today

The Hindu Succession (Amendment) Act 2005 (HSAA 2005) was, in fact, a landmark. It brought all agricultural land on par with other forms of property, and made Hindu women’s inheritance rights in land legally equal to men’s across states. The amended Act also made all daughters (married and unmarried) coparceners along with sons in joint family property, with the same rights to shares, to claim partition, and (by presumption) to become kartas (managers) of that property. It also gave daughters the same rights as sons to reside in and seek partition of the family dwelling house.

The amended Act is thus a significant legal step forward and has the potential for substantially empowering women. In particular, the removal of legal hurdles to women inheriting agricultural land has the potential of benefitting millions of women. But we still have to examine the impact of the Act on the ground. So far we have little information on this count. In fact, we still do not have systematic data across the country on women’s actual ownership of immovable property.

A 1991 survey in seven states by development sociologist Marty Chen, although on a small sample, is indicative. It showed that only 13% of women whose fathers owned land had inherited any as daughters, although Kerala did much better with a figure of 43%. We also know from the Agricultural Census of 1995-96 (when gender-disaggregated data was collected) that women held only 9.5% of all operational (that is cultivated) landholdings. We need more up-to-date information, however. And there is a strong case for strengthening the statistical database by disaggregating land owned and operated by gender in the agricultural censuses and NSS surveys.

Moreover, although we now have a gender-equal inheritance law for Hindu women, there have been few efforts by women’s organisations to use the amended law innovatively or raise awareness about it. In contrast, the Protection of Women from Domestic Violence Act, which was also passed in 2005, has received substantial attention from women’s groups. The neglect of the HSAA 2005 by women’s groups is surprising, since the Act can go a long way in protecting women even from domestic violence. The HSAA, as noted, allows women to reside in their parental home, as a right and not on sufferance. It also gives women substantial rights by birth in coparcenary parental property -- rights which cannot be negated through wills. These rights could go a long way in providing women the economic security they need to leave violent marriages and carve out more independent lives. It is time the enormous potential of the HSAA 2005 in empowering women and improving their economic and social wellbeing is given due cognisance, both by civil society groups and the government. This can be done by spreading awareness about its provisions among women and communities in general; providing legal aid to women who wish to exercise their rights legally; and strengthening social support for those who need it to deal with any negative fallout from families.

In the long term, of course, it is not desirable that families be torn apart by litigation over property. What we would want is a voluntary recognition by society that daughters are equal to sons in terms of their rights over property, especially immovable property. This will need substantial attitudinal change, which is happening to some extent. Demographically too, as families become smaller, this could become more of a reality.

(Bina Agrawal is a prize-winning development economist and Professor of Economics at the Institute of Economic Growth in Delhi. Her work, A Field of One’s Own: Gender and Land Rights in South Asia, was published by Cambridge University Press in 1994. She also spearheaded a successful campaign for the comprehensive amendment of the 1956 HSA which resulted in the enactment of HSAA 2005)

Infochange News & Features, December 2012