Wednesday, January 04, 2006

Gender Equality Law 3

Policy views

Catch Points of HAS 2005

Empowerment of women with property rights to land will lead to decrease of violence of women. Bina Agarwal’s research on Kerala shows that women’s risk of physical violence from husbands is dramatically less it they own land or a house. The incidence is 42 percent among women without property, but 18 percent among land owning women, and 7 percent if they own both land and house.

Gender equality in agriculture land can reduce not just a women’s but her whole family’s risk of poverty, increase her livelihood, enhance prospects of child survival, education and health, and reduce domestic violence.

Land in women’s hand can also increase agricultural productivity as male migration and female headedness increases.

Another point it to be note in connection with a general misconception that gender -inheritance laws can only benefit a few women. In fact, millions of women - as widows and daughters - stand to gain. Calculations based on NSS data for all India indicate that at least 78 percent of rural families own some agricultural land; and if we include homestead plots 89 percent of rural families own land. Although most own very small fields, rights even in these can provide supplementary subsistence.

The risk of fragmentation of properties is also said to be a disadvantage of gender-equal rights. In reality, this argument is misleading and cannot justify selectively disinheriting women. Fragmentation can occur even when sons inherit. In practice many rural families continue to cultivate jointly even when parcels are owned individually. The same can hold for daughters. Fragments per holding for all India actually declined from 5.7 percent in 1961 to 2.7 percent in 1991.

Women migration on marriage was thought to be a barrier to inherit property. But if men retain their claims despite job related migration, women could retain claims on marriage related migration too. They could lease out their land to their family or some one else, or cultivate it co-operatively with other women. It will ensure economic security to women.

The present law economically empower and enhance their security by giving them birth rights in property that cannot be willed away by men. Further, women can become ‘kartas’ of the property. This strongly signals that daughters and sons are equally important member of parental family. It undermines the notion that after marriage the daughter belongs to her husband’s family. It her marriage breaks down she can now return to her birth home by right, and not by sufferance of relatives. This will enhance her self-confidence, social worth and give her greater bargaining power for herself an her children in both parental and marital home.

Giving married daughters co-parcenary rights from the start is unusual. Except Kerala whch abolished joint family property altogether, in other State level amendments of the 1956 HAS, viz: Tamilnadu, Andhra Pradesh, Karnataka and Maharashtra - only daughters unmarried when the amendments were passed got co-parcenary rights. Notably however they retain this right on subsequent marriage and fears of extensive litigation by such married daughters have proved false.

Under the 2005 Act, married daughters will also benefit by deletion of Section 23, since now they will have residence and partition rights in the parental dwelling house. In particular women facing spousal violence will have somewhere to go. The only negative aspect is that allowing partition could increase the vulnerability of elderly parents. A preferred alternative would have been to bar both sons and daughters from seeking partition during their parents’ life times, if the family had only one dwelling.

It is more egalitarian to abolish mitakshara system altogether. Making daughters co-parceners will decrease the shares of other Class I female heris, such as the deceased widow and mother, since the co-parceners share of the deceased male from whom they inherit will decline. In States where the wife takes a share on partition, as in Maharashtra, the widow’s potential share will how equal the sons and daughters. But where the wife takes no share or partition, as in Tamilnadu and Andhra Pradesh the widow’s potential share will fall below the daughters.

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