Well-defined property rights in favour of women would mark a major step forward.
The UPA-II Government has recently, in a bid to make the Marriage Laws (Amendment) Bill, 2010 more women-friendly, has approved fresh amendments to give the wife a clearly-defined share in the husband's immovable residential property in case of a split.
Ever since the time when Dr B.R. Ambedkar first moved the Hindu Code Bill in 1949 as India’s first Law Minister, every time the lawmakers (predominantly male) have discussed bringing equality in women’s access to assets, they have not been able to push aside their prejudices.
Thus, given the response that the Marriage Laws (Amendment) Bill, 2010, has generated and the far-reaching implications it suggests for Indian women, it certainly needs introspection.
Limited land ownership
It is only in the last few decades that India has achieved a remarkable progress in expanding women’s economic opportunities.
The Hindu Succession (Amendment) Act, 2005, in particular, promised to be a milestone in this regard.
But even after seven years of its implementation, asset ownership rights to women guaranteed through equal inheritance in agricultural land, joint family property and parental dwelling house still remain a distant dream.
Over the years, while the proportion of de facto female-headed households (currently roughly around 35 per cent due to widowhood, divorce or male migration) has increased, their ownership of land has remained limited.
According to the Agricultural Census 2005-06, women own only 9.3 per cent of the total agricultural land and constitute just 11.6 per cent of total land holders. This is really small, relative to their threefold contribution to society — productive, reproductive, and social.
The incidence of landlessness is even greater among the Scheduled Castes and Scheduled Tribes, with the status of women within them worse. Scheduled Castes as a whole constitute 12.5 per cent of total land owners (out of which 76 per cent own land below 1 hectare) and 8.5 per cent of the total land owned in India.
Scheduled Tribes constitute 8 per cent of total land owners (out of which nearly 50 per cent own land below 1 hectare) and 10.8 per cent of total land owned. Among the Scheduled Castes, the corresponding proportion of women works out to 1.3 per cent and 0.7 per cent, respectively. It shows a virtual absence of land titles amongst these sections.
Empowerment is key
Ownership or access to resources, especially land, is a crucial precondition not only of welfare, but also empowerment of women.
Equality in ownership and management of agricultural land not only reduces the family’s risk of poverty by increasing its livelihood options; it also ensures better health and education of the child and also reduces women’s fertility rate, and domestic violence.
On the other hand, denying women access to land results in steep poverty and very low attainments on the human development scale. Gender inequality in access to and control over land, thus, is a clear impediment in achieving sustainable development.
The US experience, in this regard, shows that modifications in divorce laws have had large and far-reaching impact on female asset accumulation, intra-marital violence and the rate of suicides.
The debate on the Hindu Code Bill, which took place in the period following India’s Independence, witnessed immense opposition from several quarters with regard to its three parts, namely Marriage (on the subject matter of Divorce), Joint Family Property (on the rule of survivorship) and Intestate Succession (on the daughter's share). While Dr Ambedkar defended all these provisions with optimum capability, he ultimately had to submit before the opposing majority that included stalwarts such as President Rajendra Prasad himself.
Subsequently, when the first Lok Sabha met during its term from 1952 to 1957, the Bill had to be broken down into three separate Acts — the Hindu Marriage Act (HMA), the Hindu Adoption and Maintenance Act (HAMA) and the Hindu Succession Act (HSA) — in order to see the light of day.
However, these Acts could not achieve anywhere the scope that Dr Ambedkar had intended. The HSA, 1956, did not make women co-parceners.
The country had to hence wait for another 50 years to bring women at par with men with respect to property rights through the Hindu Succession (Amendment) Act, 2005.
Surprisingly, women did not find their rightful place even in the redistributive land reform laws that were enacted across different States.
As Bina Agarwal, author of A Field of One’s Own, noted, some States such as Kerala, Andhra Pradesh, Maharashtra, Karnataka, and Tamil Nadu, brought about their own amendment to the HSA 1956. But these remained virtually non-existent in rural India.
Following the Ninth Five Year Plan’s (1997-2002) guidance for according preference to women in the distribution of ceiling surplus land, some States also issued government orders for joint entitlement to both husband and wife. But even these failed to bring any substantial success in securing women access to land.
One hopes the Marriage Laws (Amendment) Bill, 2010 (introduced as an amendment to the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954) does not meet a similar fate. The Bill has been pending in Parliament since August 4, 2010.
It is also not free of shortcomings, which is why there have been proposals that the wife should be treated as an equal partner in the marriage and be allowed get equal right to marital property.
In case of a split, she should be given equal share in both the immovable and movable properties acquired during the subsistence of marriage.
Only if passed in this form can the Bill serve women, who not only face the difficulties of deep-rooted pre-marriage social maladies such as dowry, but also the post-marriage trauma of being deserted by their husbands.
The above legal changes undeniably attempt to improve women’s socio-economic status and inheritance rights. However, the pattern of inequality and gender discrimination with its caste-class interface in India is a far more complex problem.
The step taken by the government to give the wife and children a clearly-defined share in the husband’s “immovable residential property” in case of a divorce is, no doubt, a positive step.
At the same time, its implementation and, more importantly, creating legal awareness among those affected (majority of whom are illiterate) remains a big challenge.
Moreover, the resistance that such gender-positive legislation faces from women themselves, whether consensual or due to fear of social sanctions, cannot be ignored easily.