LAND LAW ASSIGNMENT

TOPIC: REALISM OF WOMEN’S LAND RIGHTS

Submitted by

C. Priyanka

123087034

BA LLB(Hons.)
 Abstract

Society comprises of both men and women. But essentially it is safe to say that it has always
been inclined towards one specific gender i.e., men and their needs. From time immemorial
women have been made to depend on men for their survival. But with the wave of women’s
movement and equality, many rights have been invested on women. They have granted right
including right to vote, right to property, right to equal pay. These rights have given women a
sense of empowerment and independency. Secure land rights create a source of income for
women and also research show that when women are given land, they plant trees and similar
kinds of plantations ultimately contributing to the creation of better ecosystem. Even though
women are given land rights, the reality stands otherwise. There is a need for the significance
of women's involvement in land governance, the diversity of rural women and tenure, and the
necessity of achieving de facto equality. Lack of land rights is associated with lack of access
to credit, extension sources1. There are issues and puzzles that prevent from women from full
enjoyment of land rights. There is no legal interference, let alone strengthen, the women’s
right over land and forest resources. This article reflects upon the need for strengthening
women’s land rights and their practical implementation.

1
https://agrilinks.org/post/securing-womens-land-rights-challenges-and-solutions
INTRODUCTION

Over the span of 75 years, right from the independence, India has undergone a series of land
reforms that protected cultivating tenants from the atrocities of landlord. But what is left
uncounted is the legal provisions for securing women’s right over land. Indian law makers
failed to protect women from patriarchal society. we have made far number of legislations
which protects women from cruelty, domestic violence, assuring equality and equal
opportunity but securing land rights have been left in gaps. Securing land rights to women
paves way for empowerment and source of income. Land plays a crucial role in rural India,
where agriculture forms major part of occupation. Recent study reveals that Even though only
men are officially recognised as farmers, more than 80 percent of the labour on farms is done
by women—either by women from the family or by hired labour. Yet, only 13 percent of
agricultural land is owned by women.2 Land is an asset that assures independency to women,
and make them self-reliant. Recent international conferences also repeatedly restated the need
for strengthening women’s land rights. The Beijing Platform for Action declared that women
should be granted the ability to inherit and the right to possess land and property. As part of
its fundamental strategy to improve women's economic security and rights and lessen
gendered poverty, UN Women promotes women's rights to land and property. A lot of effort
is being put towards making sure that women have legal and practical access to property
rights that are equivalent to men's.

HISTORY OF WOMEN’S LAND RIGHTS:

Throughout the ancient Hindu law statutes, women are regarded as subordinate to men.
Manusmrithi and Dharmasastra denied property rights to women. Thus, initially women were
granted no rights but made to depend on other members of the family for her needs and
survival. This created a gap between genders economic resources and forced women to be
sub ordinate to men. Through the ages, India had witnessed many progressive leaders who
have rendered their voice to eliminate that gap by enacting legislations that granted equal
status to both genders with regard to inheritance and successions. The women right to
agricultural land is mediated through personal laws and customary practices. Women’s power
in decision making are influenced by her property possession and ownership. Santos et al.
(2014), for example, used the 2010 data from 1,373 household in West Bengal and found that
2
https://idronline.org/article/gender/land-rights-as-a-pathway-to-womens-empowerment/
having women’s name on the land titles was positively associated with their participation in
decisions regarding the use of agricultural land and purchase of productive assets.

The Hindu Law of Inheritance Act of 1929 was the first legislation to incorporate women in
the inheritance and related laws. This Act allowed three female heirs—a sister, a
granddaughter, and a son's daughter—to inherit real estate. One of the fundamental
provisions of the law that allowed women access to property ownership in the years that
followed was the Hindu Women's Rights to Property Act of 1937. This specific Act of 1937
was passed following numerous demonstrations against legislation that discriminated against
women's rights. Once in force, it altered the rules pertaining to cohabitation, divorce,
property, inheritance, and even adoption. The Act of 1937 also offered widows the chance to
share in their estates equally with their sons and to succeed alongside them.

Despite the passage of this law, a daughter essentially lacked inheritance rights. The
establishment of equal rights for men and women was insufficient. The guarantee of equality
as contained in Article 14 of the Indian Constitution was fairly central to the 1956 Hindu
Succession Act. With the passing of this Act, the limited property rights granted under the
previous Hindu Women's Right to Property Act were abolished. By allowing them to inherit a
share of their father's inheritance, this Act attempted to elevate the standing of women in
society. Daughters were given the option to inherit their father's separate property under this
statute, which recognised them as his legal successors. Women were not given any rights to
inherit ancestors' property or follow the rules of succession, despite this Act. Only the men
were legally entitled to inherit the family's property because they were given the status as
coparceners at birth. The inequality between daughters and boys was perpetuated by this
clause.

A NEW DAWN FOR WOMEN’S RIGHT OVER LAND

The existing laws, as previously said, did not support sons and daughters having equal rights,
so it was decided that they needed to be amended. The Law Commission Report of 2000
made reform suggestions on women's estate rights. The Law Commission identified every
section and clause that was discriminatory towards men and recommended significant
changes. The Hindu Succession (Amendment) Act, 2005 was only passed to give daughters
and women greater property rights and to equalise their status with male family members.
The biggest change brought about by this amendment was the addition of daughters as
coparceners. In light of this, the 2005 Amendment grants the family's daughter the same
rights to the joint family property as the sons, whether or not she is married. Daughters now
have the same duties and privileges as sons. This was accomplished by amending Section 6
of the 1956 Act. It also mentioned the possibility of female family members now acting as
the family's Karta. Daughters were now regarded as coparceners in the same way.

With its decision that daughters have a right to coparcenary property regardless of whether
the father was alive at the time of the 2005 Amendment, the Supreme Court has further
allayed any lingering doubts regarding the retrospectivity of the Amendment Act of 2005,
making progress toward gender equality. Both metaphorically and financially, women have
profited enormously from the upcoming change that will make all daughters co-owners of
joint family property. Therefore, the current statute states that, women are entitled to inherit
their ancestral property.

The Forest Rights Act 2006, which recognises the rights of forest-dwelling communities to
forest land and resources. Under this act, women can be joint owners of land along with men
when applying for individual forest rights, as well as collectively own land with their
community under the provisions for community forest rights.

JUDICIAL INTEREVNTIONS:

 INCOME TAX V. G.S. MILLS3

The Supreme Court disputed whether women may serve as the head of the family in this case.
The widow was ruled by the court to be ineligible to join the family, but this does not exclude
women from joining joint families. This case is crucial because the Hindu Succession Act of
1956, which was in effect at the time, had already been passed into law and its provisions
were still in effect.

 VAISHALI SATISH GANORKAR V. SATISH KESHAORAO GANORKAR 4

According to the Bombay High Court, the Hindu Succession Amendment will not apply in
this situation until the daughter is born after 2005. The Court explicitly referred to the
requirement that the daughter and her father be alive on the day of the amendment as a result
3
1966 AIR 24, 1965 SCR (3) 488
4
2012 (5) Bom CR 210
of a later, larger bench judgement taking the opposite position on this matter. The
presumption against retrospectivity, according to the judgement, does not apply to acts that
have a declaratory nature. Declaratory statutes are simply announced, therefore they may be
used in the past. The presumption against eliminating vested rights would not be applicable
as a result. The phrase "must become" is now a coparcener in Section 6 of the HSA as it has
been amended. Vested rights that existed prior to the law's implementation cannot be
cancelled by becoming a coparcener.

 BADRINARAYAN SHANKAR BHANDARI V. OM PRAKASH SHANKAR

Although it is explicitly stated that the Hindu Succession Act should have a prospective
impact rather than a retroactive one, the key question in this case is whether the Hindu
Succession Amendment Act of 2005 should apply to events that occurred before the
amendment.

TAMILNADU: A PIONEER OF WOMEN’S LAND RIGHTS

The Supreme Court recently ruled that all women should have a right that Tamil Nadu
daughters have been enjoying for the past 30 years. The Supreme Court ruled on August 11
that daughters have the same rights to inherit family property as sons. A three-judge panel
ruled that girls in a Hindu joint family will always be coparceners, even though the father
passed away before the Hindu Succession (Amendment) Act, 2005, took effect. In 1989,
Tamil Nadu approved a law granting women in family properties similar rights. Since the
early 20th century, state leaders had pushed for women to have equal rights. At a convention
sponsored by the Self-Respect Movement in Chengalpattu in 1929, Periyar adopted a
resolution supporting the property rights of women. The Hindu Succession (Tamil Nadu
Amendment) Act, 1989 was passed by the then-chief minister M Karunanidhi some 60 years
later, satiating the demand. When the Center amended the Hindu Succession Act of 1956 and
put into effect the Hindu Succession Act of 2005, which guaranteed gender equality in
property rights, the state actually served as a role model. However, activists claim that few
women have benefited from the measure. "Even though Tamil Nadu granted them the
privilege many years ago, only 10% of the state's female citizens actually benefit from the

5
2014 AIR, Bom 151
law. The majority of women, particularly educated women, are unaware of this right, which
accounts for the pitifully low proportion of women who receive inheritance. When compared
to other states, nevertheless, Tamil Nadu still stands out, according to lawyer D Thanga
Durai. Another advocate, B S Ajeetha, notes that the statute had some restrictions. According
to Ajeetha, it said that women who married before 1989 were not eligible to claim property
rights and only passed them to unmarried daughters. "A girl does not beg for property in
Tamil society. Daughters typically don't assert their rights since they feel an emotional
connection to their parents. The relationships suffer if they make a claim, she added. "Before
the amendment, many families required their daughters to sign a bond renouncing their claim
to property rights before marriages could take place. Women were coerced into signing such
a commitment by their parents and siblings, she claimed. Andhra Pradesh has already enacted
a change in 1986 before Tamil Nadu. But the main revision from 2005 was the one that had
the biggest impact. Daughters now have the same rights as sons thanks to the legislation,
according to Ajeetha.

GROUND REALITY OF WOMEN’S RIGHT

The answer is yes if you're wondering whether the state amendments changed anything. It
developed the idea that women should have the same rights as men. Because we lack data, it
is challenging to determine how much the state changes have benefited women. Additionally,
it must be noted that most legislation protecting women's rights in patriarchal societies still
exist only on paper. According to economist J Jeyaranjan, who has studied land reforms of
the state for many years, it is unnecessary to quantify the changes that the amendment would
have ushered in.

Getting an education was challenging for women thirty years ago. Thus, the Tamil Nadu
government began by introducing them to the educational system. After that, it offered them
job chances and encouraged them to finish their education. They become more independent if
they get employment. Once that is accomplished, you level the playing field for them on
several other fronts, like property rights. The present does not mark the beginning or the
conclusion. The goal of women's empowerment is ongoing. These changes are a component
of it. “When we got lands from landlords, we registered them in women’s names because,
while women are celebrated as the ‘heads of family’, they never got any rights to property.
The lands are still in women’s name. They farmed and earned well. That confidence has
enabled them to walk with their heads held high,” said Krishnammal Jagannathan,
founder, Land for Tillers’ Freedom (LAFTI, an organisation similar to the Bhoodan
movement) in Nagapattinam district.

In India, almost a third of cultivators are woman, but they own less than 10.34 percent of
land, operating 12.8 percent of holdings, as per Agriculture Census, 2010-11, while 75
percent of female workforce, largely marginal or landless, depends on agriculture for
survival. The average size of women’s land holding is 0.93 ha, in comparison to 1.18 ha for
male and 1.15 ha for all. The regional disparity with regards to women’s land rights was
evident with the states in the southern region showing comparatively more number and area
of land holdings operated by women while the situation in Northern and Eastern region states
are demonstrating a poorer picture.6

NEED FOR CLOSING THE GAP BETWEEN POLICY AND PRACTICE

Land is a resource that provides women with prospects for financial stability, shelter, income,
and subsistence. In order to promote progressive and long-lasting change among women,
their families, and communities, land rights for women should be viewed as a tool rather than
as an end in and of themselves. While there is little information on this in the Indian context,
research conducted worldwide demonstrates the multifaceted effects of women owning,
managing, and cultivating their own land.

 FINANCIAL SECURITY:

According to research conducted worldwide, women who have secure property and
inheritance rights make up to 3.8 times as much money and have 35% more savings than
those who don't. This is because they have more control over financial decisions involving
the income derived from the land and can use it productively as a source of living.

 WOMEN’S SOCIAL AGENCY:

Women become recognised as community decision-makers when they own land. They gain
confidence and play a stronger part in society when they have the freedom to choose which
crop to cultivate, where to sell it, and what to do with the proceeds. This may result in more
women participating in governance, whether through voting, active engagement in local
politics, or running for panchayat office.

 IMPROVES OUTCOMES OF THE FAMILY

 PROTECT THE ENVIRONMENT

Compared to men, women are regarded to be greater stewards of the land and forests. They
tend to have a stronger preference for products that benefit family health and nutrition and are
more aware of customary customs and knowledge, whether it is regarding regional crops, the
best kinds of trees to plant, or caring for the forest. Additionally, they tend to place a greater
emphasis on environmentally friendly food security or regenerative crops than on income
crops, which prevents soil erosion and preserves biodiversity.

WHAT KEEPS RURAL WOMEN FROM HAVING LAND OF THEIR OWN?

Although laws generally promote gender equality, there are substantial obstacles to its
implementation. The system's widespread patriarchal attitude is the first significant
impediment. Women frequently believe that land matters should be left to men, according to
themselves, their families, their communities, and even government officials. This
discourages both men and women from recognising the equal land claims of women.

Another obstacle is the idea that land rights are a complicated topic since there are so many
intersecting rules based on, among other things, one's religion, marital status, and the type of
land. This presents a barrier to land rights activism not only for women but also for donors
and civil society organisations. The market is incredibly disorganised, has scant data, many
information gaps, and is lacking in awareness, capabilities, and resources among stakeholder
groups, which further complicates the situation.
Last but not least, land is a social and political hot button, particularly when combined with
the caste system. The upper castes in India control and own a substantial portion of the
country's land.

RECOMMENDATIONS FOR BETTER IMPLEMENTATION

1. The Indian Stamps Act of 1899 and the Indian Registration Act of 1908 should be
amended by the Union Government to exempt the payment of stamp duty and
registration fees in the event that a single ownership is changed to joint ownership of
a husband and wife.
2. The State Governments should adhere closely to the Hindu Succession Act (HSA)
2005, properly divide the property, and grant women separate and distinguishable
land rights.
3. State governments should relax the rules governing crop land tenancy, giving
precedence to women and their collectives.
4. In order to inform effective policymaking, the Union Government should implement a
policy aimed at gathering data on women's ownership of all types of land that is sex-
disaggregated.

CONCLUSION

Women are the real architect of the society. Today we live in an empowering
world that gives equal status to both genders. But when we peak in to the
reality, we realise that we have more miles to go. Empowering women with
land rights to women is the first step towards achieving better world. Laws
states the rights but it is the duty of the government to ensure that the laws are
being applied equally and effectively. People should be made aware of the
rights and protections and it is the duty of government to make them aware.
Better implementation of women’s land rights pave way for more stable
economy and society.