Fifty years have passed since the commencement of the Constitution, when the concept of formal equality became part of this supreme law, yet, in all walks of life we find women far behind her gender counterpart i.e. man. Sons and daughters in the same family get education, status and opportunities to develop their potential quite differently. Similarly, a husband and wife living in the same house have different rights and duties.
A desperate picture emerges if one sets to analyse and compare the status of rights of men and women in agricultural land in the largest province in this country, i.e. Uttar Pradesh. Agriculture, being the dominant sector of our economy, such an analysis gives an insight into the participation of women in holding land in the province and consequently throws light on the status of property rights of women in general in this country.
The U.P. Zamindari Abolition and Land Reforms Act, 1950, was passed with the express motive of abolishing the ‘Zamindari System’ in the province and according to its provisions the entire land in the province, barring certain exceptions, has come to be vested in the State since then. Further, three types of tenure holdings have been created by the Act, but the inheritance of the tenure holding has been restricted to men. The discrimination is based purely on gender and nothing else. Section 171 of the Act clearly lays down that in case a male tenure holder dies then his son or his male descendants will come to inherit his rights in the holding of land. His own daughter and son’s daughter and the descendants of daughters have been excluded for this purpose.
While restricting the right of inheritance to the male only, the legislature has not only deprived a daughter or any other female descendant from inheritance but also the widowed wife. The law has thus expressly and deliberately maintained male hegemony in production relations and has incorporated a clear bias in favour of male descendants as opposed to the females. The existence of daughters and widows has been totally ignored and they have been excluded for all purposes in the matter of inheritance.
Not only gender but other pretexts have also been carved out to ensure the exclusion of women from the arena of property rights. The marital status of women has been prescribed as a further disqualification. A married daughter has been completely excluded. If no male descendant is there, the rights of the deceased would come to be inherited even by his brothers or other male relatives but not by his own daughter. In categorical terms, the Act has preferred the brother of a deceased to a married daughter of the deceased for inheritance in tenure holding. Thus, even in a nuclear family where there is no male survivor, the married daughter cannot inherit the rights, rather her uncle has been found by our legislature in its wisdom, to be a suitable heir to inherit the tenure holding. Thus gender and marriage based discrimination by the legislature has to a great extent ensured that the rights in land holding of the family will continue to be possessed by the males to the exclusion of females.
It is pertinent to consider here that no stretch of the imagination can provide justification for such biased, inequitable and arbitrary discrimination and that too in the light of the so much talked of fundamental right to equality as provided in the Constitution itself. But still the supporters of such legislation in relation to agricultural land mainly rely on two arguments in their favour, first that the privileged position of men in contrast to women and consequent exclusion of women will protect the land from fragmentation and, secondly, that it will keep the landholding intact by saving it from ‘outside’ interference. Here we see the feudal prejudice that the independent family units developed through males are ‘inside’ the family and those through females are ‘outside’ the family.
The first argument against fragmentation is not justified, for all the sons have been treated as legal heirs for the purpose of inheritance. The contention against fragmentation of land would have had force had there been a law of primogeniture i.e. inheritance by the eldest son alone. It is true that the other male descendants have not been subjected to this type of inequality, bias and arbitrariness. Further the argument against fragmentation is devoid of any merit because the scheme of the Act does not restrict the maximum number of sons which in its turn decides the number of shares, thus, the division of land even among six or seven sons is not fragmentation but if it comes to division of land among two or three sons and daughters there is a hue and cry regarding fragmentation of land. It is clear from the present state of affairs that the legislature has discriminated against women without any reservations and has thus consciously perpetuated patriarchy in rural production relations.
The other argument raised in favour of inheritance for male descendants is that after marriage a daughter goes to live with her husband at a different place hence is unable to take care of the land. In order to keep the land intact and save it from the ‘outside’ interference of other persons, it ought to be kept out of the reach of female members in the family. This argument is totally baseless and without any material basis as a male working at a different place does not lose his right to inheritance, even if the land is practically inaccessible to him. The male residing even in a distant or remote region does not lose his right to inheritance in another village. In this era of fast communication and women coming forward to take up all types of responsibilities, the prejudice based upon an assumption that a woman cannot take care of her land is nothing but a false pretext to exclude her from holding the rights. The fallacy of the above argument and the deep-rooted gender bias in the minds of those who run the State is patently clear from the fact that even in the case of acquisition of land by the government, where no question of fragmentation or interference with land arises, and the matter is only to get the net monetary proceeds (acquisition compensation), the daughter is still not entitled to receive the same and only sons are entitled to it.
In contrast to Uttar Pradesh, in those regions in India where there have been strong mass movements in rural areas, some small but beneficial and comparatively progressive piece of legislation, like the Hindu Succession (Andhra Pradesh Amendment) Act 1986, could be brought on the statute book. This Act of 1986 has brought about a progressive amendment in the law by conferring a status of coparcenor on the daughters by suitably amending the original Act. The preamble of this amending Act, recognising the necessity of such amendment, says that the amendment is necessary because the ‘exclusion of the daughters has led to the creation of the socially pernicious dowry system with its attendant social ills.’ In Andhra Pradesh thus the law of succession has been suitably amended so that it should be in conformity with the fundamental right guaranteed in the Constitution of India.
The corresponding law in Uttar Pradesh is not only ultra vires of the Constitution, being violative of the fundamental rights to equality, it is also far behind the public opinion and contrary to the declared aim of bourgeois democracy to establish an egalitarian society, even if on paper. There patently seems to be a conscious attempt on the part of the State to perpetuate the patriarchal production relations and thus maintain the status quo in this biggest province, in the country.
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