Are Customary Laws Gender Biased?

Introduction

Gender discrimination has been one of the most primitive forms of discrimination in most civilizations. Though globally most societies are moving towards reform, there is also a realization that there is too much to be changed and women’s rights have been suppressed for too long a time. In matters such as property rights, the treatment extended to women is atrocious, to say the least.

This scenario is not confined to India, but women’s rights in, access to, and control over land, housing, and other property continue to be limited all over the world. Gender-biased laws, traditional attitudes toward women, and male-dominated social hierarchies pose obstacles to women attaining equal and just rights. The situation tends to be worse in war-torn societies. Absent property rights, a cross-section of war-affected women—refugees, internally displaced, and heads of households—tend to live in dire poverty and deprivation. Everywhere, women without property rights find it more difficult to gain access to credit that allows them to invest in agriculture or micro-enterprises. Talking about gender bias in ownership rights, which happens to be one of his areas of expertise, Nobel laureate Amartya Sen says:

In many societies the ownership of property can also be very unequal. Even basic assets such as homes and land may be very asymmetrically shared. The absence of claims to property can not only reduce the voice of women, but also make it harder for women to enter and flourish in commercial, economic and even some social activities.2 This type of inequality has existed in most parts of the world, though there are also local variations. For example, even though traditional property rights have favoured men in the bulk of India, in what is now the State of Kerala, there has been, for a long time, matrilineal inheritance for an influential part of the community, namely the Nairs.

This inequality will be the focus of this researcher, through this study.

Hypothesis

The hypothesis of the instant project is that customary laws, most of which are in vogue to date, have institutionalised gender bias within them and therefore discriminate heavily between men and women especially over property rights. Property rights have been one of the oldest contentions of women’s rights activists. Though reforms have come about in the form of various amendments and judgments, equality is still a far-fetched picture.

There has been an attempt to unify Hindu law across the country. Broadly comparing the two most prominent models of customary law – the Mitakshara and the Marumakattayam models, one notices that the latter furthers the unification of Hindu law. It may be recalled that P.V. Kane supporting the recommendation of the Rau Committee stated: “And the unification of Hindu law will be helped by the abolition of the right by birth which is the cornerstone of the Mitakshara School and which the draft Hindu Code seeks to abolish.”

However, what is of greater importance to this study is how in the first place customary laws were discriminatory in nature. The chapters of this study will elaborate on the same.

Section 23 of the Hindu Succession Act is again a glaring incidence of gender bias in law. One of the main driving factors behind the enactment of the Hindu Succession Act was to give right to property to women yet by enacting Section 23, the right to enjoy the property is very much restricted for women. The female heirs are not entitled to sue their brother for partition. It is only if one of the brothers choose to partition the property that the sisters can get a share in it. Further the Schedule giving Class I heirs also reflects inequality. As can be seen clearly while the son’s son’s son and son’s son’s daughter get a share, a daughter’s daughter’s son and daughter’s daughter’s daughter do not get anything. Similarly while the widows of a predeceased son and grandson are Class I heirs the husband of a deceased daughter or a granddaughter are not heirs.

Nature And Scope

The scope of this project is restricted to studying the gender bias in customary laws over property rights in various laws. The researcher would not intend to explore other inequalities, which may follow the same pattern as existent in case of property rights. The researcher’s attempt would be to analyse the laws in order to bring out factual evidence in support of the hypothesis. For the purpose of this study, the researcher will not only analyse the laws but will also refer to cases, which in extension of the legal provisions also aided the process of discrimination. However, the customary laws will be the primary area of focus.

Research Questions

[I] Are customary laws discriminatory in nature? Which are the laws and how do they discriminate on the basis of gender?

The law relating to succession is a glaring example of inequality still pervading in our system. Women are not recognized as coparceners in the joint Hindu family. The self-acquired property devolves on survivors as per Schedule 1 of the Act. Class I heirs include mother, widow and daughter as successors of a Hindu male dying intestate. In Dayabhaga School, women have some better right than that of Mitakshara, as they become the coparceners. Yet on account of the freedom to bequeath by a will very often the female’s right to property by succession gets curtailed. It is common experience that the patriarchal sentiments are so strong that the father would rather write a will bequeathing all his properties to his sons in order to ensure that no part of his property falls in the hands of his daughter/daughters.

[II] What has been the approach of courts towards these discriminatory laws?

As the provisions of the laws are blatantly discriminatory, there is little that courts can do. Their hands are tied and so they continue to play into the hands of discriminatory laws. For instance Kanshi v. Sant Lal and Anr the Punjab High Court ruled that: “females have no right under custom to challenge alienation by males and that the suit on their behalf is wholly incompetent and is liable to be dismissed on this short ground.”

[III] What are the reforms being brought in order to stop the discrimination practiced by customary laws?

Legislations were passed by five Indian states namely; Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra to remove the discriminatory features of the right by birth under the Mitakshara law. Kerala Legislature took the lead in 1976 when it passed the Kerala Joint Family System (Abolition) Act, 1976 (hereafter the Kerala Act). This legislation broadly followed the recommendations of the Hindu Law Committee – the Rau Committee – and abolished the right of birth under the Mitakshara as well as the Marumakattayam law. On the other hand, the Andhra Pradesh Legislature conferred the right by birth on daughters who are unmarried on the date when the Act came into force. This approach, instead of abolishing the right by birth, strengthens it, while broadly removing the gender discrimination inherent in Mitakshara coparcenary. The States of Tamil Nadu (1989), Maharashtra (1994) and Karnataka (1994) followed the Andhra model.

Discriminatory Laws: A Global Background

The most obvious proof of the discrimination of women in various religions is the existence of the strong gender bias in customary laws related to property. Both the laws related to property – testamentary and intestate – discriminate women. Somehow, most societies could never see a woman as an executor of property and control of land was traditionally a right that men enjoyed.

This researcher is in favour of granting property rights to women for reasons other than equality. In many regions of the world, households, communities, and societies are destroyed by civil war, invasions from neighboring countries, and interethnic violence. During periods of violence and conflict, the destruction of material and physical resources is devastating for families and communities, particularly for low-income populations. The destruction, however, goes beyond the material and physical. Community cohesion, governance institutions, community authority structures, and socioeconomic subsistence networks are also destroyed, leaving the most vulnerable—such as women and children—destitute and with minimal recourse for even their daily survival. Often families flee the violence and destruction to other parts of their countries or to other countries, leaving most of their belongings and assets behind. Apart from this, due to the absence of property rights for women are also unable to invest in small-scale industries or other micro-enterprises.

The process of rebuilding communities’ social structures and institutions is slow and uneven. Nevertheless, the restoration of civil and human rights to all groups—including women—is the basis for rebuilding a democratic post-conflict society. Land and housing make up one crucial set of rights. Property rights are recognized as an important factor in the struggle to attain economic development, social equity, and democratic governance. As cultural heritage and a productive resource, the value and meaning of land is universally recognized. Its social and psychological values for rural families are also important. The challenge is to improve social equity while working for peace, security, and reconstruction. But peace must be understood as more than the absence of war and violence; reconstruction must be seen as more than bricks, roads, and telephone networks; and security must be defined as more than a strong military force.

The numerous ways in which inequality is propagated is appalling. There are no generic remedies for the disease of inequality. The patterns of inequality can also change from time to time. In fact, this researcher would safely argue that from in the Indian context, the forms of inequality have become less material and more sociological overtime. Though on the outset, laws are being framed and amended from day to day, granting more rights to women, the genus or the origin of male superiority itself has not been destroyed. Different forms of gender inequality can impose diverse adversities on the lives of men – young and old, in addition to those of women and girls. In understanding the different aspects of the evil of gender inequality, we have to look beyond the predicament of women and examine the problems created for men as well by the asymmetric treatment of women. These causal connections, which can be very significant, can vary with the form of gender inequality. Finally, inequalities of different kinds can also, frequently enough, feed each other, and we have to be aware of their interlinkages.

It may be noted in this context, that there is a very unhealthy belief among thinkers in this context that Eastern and South-Asian countries are infested with inequality more drastically and that the West is relatively safe. This is an extremely false assumption. The patterns may differ, as said earlier, but discrimination in its multifarious forms exists all across the globe. For example, India, along with Bangladesh, Pakistan and Sri Lanka, has had female heads of governments, which the United States or Japan has not yet had. Indeed, in the case of Bangladesh, where both the Prime Minister and the Leader of the Opposition are women, one might begin to wonder whether any man could possibly rise to a leadership position there in the near future.

In fact, going way back in time, the Indian some of the most significant thinking in the area of rights of women has come from women intellectuals such as Gargi and Maitreyee in the Upanishads, which dates back to eighth century B.C. The classic formulation of this distinction would, of course, come about four centuries later, from Aristotle, in Nicomachean Ethics, but it is interesting that the first sharp formulation of the value of living for men and women should have come from a woman thinker in a society that has not yet – three thousand years later – been able to overcome the mortality differential between women and men.

The most important angle that this researcher intends to focus on is the economic angle. Property rights to resources such as land, water, and trees play a fundamental role in governing the patterns of natural resource management, as well as in the welfare of individuals, households, and communities who depend on those resources. Policies that shape property rights can play a major role in promoting (or inhibiting) economic growth, equity of distribution, and sustainability of the resource base. If we can understand existing natural resource property regimes, how they are determined, and the role played by policy in that determination, policies can be devised that are supportive of broad-based economic growth, especially in rural areas. Property rights include far more than titles and pieces of paper specifying “ownership” of a defined piece of land or other resource. They encompass a diverse set of tenure rules and other aspects of access to and use of resources. If we understand property rights to refer to an individual’s capacity to call upon the collective to stand behind his or her claim to a benefit stream, then property rights describe relationships between people. The success of any policy, whether designed to prevent further depletion of degradation of the natural resource, or to enhance the resource base, or to ensure sustainable resource utilization, or to improve household welfare, depends on an ability to successfully anticipate the responses of individuals. Time and again, however, actual responses differ from anticipated responses.

However, restricting our view only to the discriminatory property rights in India, the primary focus of this shall be the various succession acts:

1. The Hindu Succession Act, 1956
2. The Indian Succession Act, 1925
3. The Muslim laws – the Hanafi Law of Inheritance

A Brief Overview Of Discriminatory Customary Laws In India

This chapter will discuss the discriminatory laws in various religions in India in relation to property.

[A] Hindus

The Mitakshara School of law confers inheritance rights to men over women.

The Hindu Succession Act has its roots in customary Hindu laws and is applicable to those who follow Aliyasantana law, Sthanamdar, Marumakkatayam law and Nambudri law and is

This act has following discriminatory aspects:

1. The agnates are preferred over cognates.
2. Widows who are re-marrying are not allowed to inherit the property of the deceased.

Though the proposed amendments to the Hindu Succession Acts aim to make succession a relatively non-discriminatory affair, the customary laws substantially remain preferential and prejudiced in their outlook.

[B] Tribals

As customary laws, that are completely uncodified govern succession among tribals, discrimination against women continues among tribal communities, unstinted. In this context, a notable incident occurred in 1982, when members of Ho tribe (including Madhu Kishwar, Sonamuni and Muki Dui) questioned the legitimacy of sections 7, 8 and 76 of the Chotanagar Tenancy Act as violative of right to equality. Juliana Lakra also challenged this through a writ petition in 1986.

The basis was that the provisions of this act only allowed descendents in the male line to become raiyats. The court however, dismissed the aforesaid claim of violation on the grounds that, if admitted the state of law would become increasingly chaotic. Despite the insightful minority judgment by Justice Ramaswamy, the rule that governs the tribal succession is the majority judgment.

[C] Christians

Christians are governed by another discriminatory act, The Indian Succession Act. The most glaring inequality in the act that deserves to be highlighted is that a widow is not entitled to distributive share of her husband’s estate if she is excluded by a contract to such a share. Also, with a large number of Christian tribals in India, being completely unaware of their rights, property rights for women is still a dream, far-fetched.

[D] Muslims

The laws governing Muslim succession were more discriminatory than all the other laws at one point of time. Only men, who were said to be the defenders and protectors of land, were entitled to inheritance. The Holy Quran explicitly states that Man is a trustee of the wealth he owns for the duration of his life. However, with growing awareness and modernization in their capacity as mother, wife, daughter and sister, women are allowed to inherit property.

Escaping The Leash Of Gender Discrimination

The year of 2005 saw major attempts to end the trail of discriminatory and retrograde inheritance laws. The Hindu Succession (Amendment) Act, 2005 intends to obliterate most of the inequalities. The amendment brings in equal inheritance rights for men in agricultural land as men. Daughters, even married ones will be coparcenors in joint family property.

Muslim women in India fall under the Muslim Personal Law (Shariat) Application Act, 1937, which overrides regressive customary practices and does away with their rigid discriminatory patterns by making a rule to the effect that widow cannot be excluded by any other heir and are protected by testamentary restrictions, though their share in lower than that of men.

The only way out of the rut of discrimination when it comes to property rights is by a reformed analysis of rights, which will look beyond who holds legal title. For land we need to look at complex bundles of rights held by different people, rather than a single “owner” of any given resource unit. The rights to access, withdraw, manage, exclude others from the resource, and to transmit or alienate rights all must be considered. Men and women often have rights to use the resource in different ways, say when it comes to agricultural rights: for different crops, grazing, and gathering on land; for irrigating, washing, watering animals, or other enterprises using water; for timber, fruits, leaves, firewood, shade, or other products from trees. Land rights have received the greatest amount of attention. As a fixed and (generally) enduring asset, it is easier to define the boundaries of the resource unit.

Good socioeconomic design to change the property rights of women and their status in general requires understanding the production systems, resource base, distribution of labor, and bargaining power of men and women of different classes. Care should be taken to understand local norms for equity and how resources are distributed in the larger web of production activities and access to benefits. It is also important to determine how effective those norms and practices are for sustaining de facto equity. However, these elements are not static; policy interventions should be expected to change these patterns. Analysis of the rules that govern resource distribution and production systems may help in anticipating how they will change, but there is no mechanistic determination.

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