Hindu women's property rights in India: a critical appraisal

Abstract

This paper addresses the need to critically define the bases and contours of ‘rights’ as created by law. Taking the example of changes in Hindu women's position in relation to property through the rights generated by statutory and constitutional provisions, the article critically evaluates the potential for such a ‘rights regime’ to enable Hindu women's greater access to property. It argues that the idea underlying a particular claim, its legitimacy and therefore effectiveness within a legal framework must be critically evaluated. The legitimacy of claims presumptively conferred within a legal framework must be interrogated in the light of legal, historical, political and cultural contexts. Such a contextual and critical analysis is crucial for effective protection of rights claims through law. To the extent that legal regimes reflect and substantiate wider social relations, their potential for bringing about substantive change in the lives of women can only be realised through ongoing critical analyses of gender, law and society.

Notes

1 Imbalances remained in the 1956 act, which have recently been rectified through amendments in 2005. See R Patel, Hindu Women's Property Rights in Eastern India: Law, Labour and Culture in (Inter)Action, Aldershot: Ashgate, 2006, forthcoming.

2 See B Agarwal, A Field of One's Own: Gender and Land Rights in South Asia, Cambridge: Cambridge University Press, 1994; and U Sharma, ‘Women, work and property in north-west India’, in H Alavi & J Harris (ed), Sociology of ‘Developing Societies’: South Asia, London: Macmillan, 1989.

3 See D Elson, Male Bias in the Development Process, Manchester: Manchester University Press, 1991; and CON Moser, Gender Planning and Development: Theory, Practice and Training, London: Routledge, 1993.

4 See I Tinker (ed), Persistent Inequalities: Women and World Development, New York: Oxford University Press, 1990; S Wieringa, ‘Women's interests and empowerment: gender planning reconsidered’, Development and Change, 25 (4), 1994, pp 829 – 848; N Visvanathan et al (eds), The Women, Gender and Development Reader, London: Zed Books, 1997; and N Kabeer, Reversed Realities: Gender Hierarchies in Development Thought, London: Verso, 1994.

5 R Patel ‘Women's right to property under Hindu law: gendered entitlements and traditional obligations’, Indian Socio-Legal Journal (Special Issue on Legal Pluralism in India), XXXI, 2005, pp 73 – 94.

6 Nussbaum's development of the capabilities approach in the context of the Indian Constitution acknowledges this normative model, incorporating values to be actively pursued by the state involving ‘affirmative material and institutional support, not simply a failure to impede’. As she puts it, fundamental entitlements addressed to lower castes and women are ‘not only not incompatible with constitutional guarantees, but are actually in their spirit’. See MC Nussbaum, ‘Capabilities as fundamental entitlements: Sen and social justice’, Feminist Economics, 9 (2 – 3), 2003, pp 33 – 59.

7 See M Galanter, Competing Equalities: Law and the Backward Classes in India, Berkeley, CA: University of California Press, 1984; and N Menon, ‘The impossibility of “justice”: female foeticide and feminist discourse on abortion’, Contributions to Indian Sociology, 29 (1 – 2), 1995, pp 369 – 392.

8 Provisions within the Fundamental Rights Chapter and the Directive Principles of State Policy.

9 For an illuminating, thorough and contextual critique of the processes of law and politics in relation to Muslim women in India, see V Narain, Gender and Community: Muslim Women's Rights in India, Toronto: University of Toronto Press, 2001.

10 F Agnes, Law and Gender Inequality, New Delhi: Oxford University Press, 1999; A Parasher, Women and Family Law Reform in India: Uniform Civil Code and Gender Equality, New Delhi: Sage Publications, 1992; Parasher, ‘Family law as a means of ensuring gender justice for Indian women’, Indian Journal of Gender Studies, 4 (2), 1997, pp 199 – 229; I Jaising (ed), Justice for Women: Personal Laws, Women's Rights and Law Reform, Mapusa: The Other India Press, 1996; and RK Agarwala & A Ramanamma, ‘Women and the family law’, in L Sarkar & B Sivaramayya (eds), Women and Law: Contemporary Problems, New Delhi: Vikas Publishing House, 1994.

11 Patel, ‘Women's right to property under Hindu law’.

12 Menon, ‘The impossibility of “justice”’; R Kapur & R Cossman, Subversive Sites: Feminist Engagements with Law in India, New Delhi: Sage Publications, 1996.

13 Mohammed Ahmed Khan v Shah Bano Khan, All India Reporter, SC 945, 1985.

14 Z Pathak & S Rajan, ‘Shah Bano’, Signs: Journal of Women in Culture and Society, 14 (3), 1989, pp 558 – 582.

15 See, for example, the Report of the Hindu Law Committee 1947, on the need for legal reforms to reflect India's place in the international community of nations. Government of India, Report of the Hindu Law Committee, New Delhi: Government of India Press, 1947.

16 JDM Derrett, Religion, Law and the State in India, London: Faber and Faber, 1968. For a more formal historical account of the British administration in India, see DD Basu, Commentary on the Constitution of India, Bombay: Tripathy, 1983; and MP Jain, Outlines of Indian Legal History, Bombay: Tripathy, 1966.

17 L Mani, ‘Contentious traditions: the debate on sati in colonial India’, in K Sangari & S Vaid (eds), Recasting Women: Essays in Indian Colonial History, Delhi: Kali for Women, 1990, p 100.

18 See VT Oldenberg, ‘Lifestyles as resistance: the case of the courtesans of Lucknow, India’, Feminist Studies, 16 (2), 1990, pp 259 – 287; and J Nair ‘From Devadasi reform to sita: reforming sex work in Mysore state, 1892 – 1937’, Feminism and the Law: nlsiu Journal, 1, 1993, pp 82 – 94.

19 See U Chakravarti, Rewriting History: The Life and Times of Pandita Ramabai, New Delhi: Kali for Women, 1998.

20 See A Chhachhi, ‘Identity politics, secularism and women: a South Asian perspective’, in Z Hasan (ed), Forging Identities: Gender, Communities and the State in India, New Delhi: Kali for Women, 1994, pp 74 – 95; P Chatterjee, Nationalist Thought and the Colonial World: A Derivative Discourse, London: Zed Books, 1993; and K Sangari & S Vaid (eds), Recasting Women: Essays in Indian Colonial History, Delhi: Kali for Women, 1990.

21 Article 13, Constitution of India, 1950.

22 See A Parasher, ‘Family law as a means of ensuring gender justice for Indian women’, Indian Journal of Gender Studies, 4 (2), 1997, pp 199 – 229.

23 H Petersen, ‘Legal pluralism and its relevance for women's law’, in R Mehdi & F Shaheed (eds), Women's Law in Legal Education and Practice in Pakistan, Copenhagen: New Social Science Monographs, 1997, p 152.

24 W Bentzon et al, Pursuing Grounded Theory in Law: South – North Experiences in Developing Women's Law, Oslo: Tano Aschehoug, 1998, pp 66 – 67.

25 Petersen, ‘Legal pluralism and its relevance for women's law’, p 154.

26 DE Smith, India as a Secular State, London: Oxford University Press, p 84.

27 See HL Moore, A Passion for Difference: Essays in Anthropology and Gender, Cambridge: Polity Press, 1995.

28 See N Fraser, Unruly Practices: Power, Discourse and Gender in Contemporary Social Theory, Cambridge: Polity Press, 1989.

29 See Agarwal, A Field of One's Own.

30 Ibid.

31 See N Gandhi & N Shah, The Issues at Stake: Theory and Practice in the Contemporary Women's Movement in India, New Delhi: Kali for Women, 1992; and A Bagwe, Of Woman Caste: The Experience of Gender in Rural India, London: Zed Books, 1995.

32 See T Dyson & M Moore, ‘On kinship structure, female autonomy, and demographic behaviour in India’, Population and Development Review, 9 (1), 1983, pp 35 – 60; and Agarwal, A Field of One's Own.

33 A Whitehead, ‘Women and men: kinship and property: some general issues [1]’, in R Hirschon (ed), Women and Property—Women as Property, London: Croom Helm/New York: St Martin's Press, 1984, p 176.

34 Sharma also gives an insightful analysis on the significance (or not) of dowry as a form of property that has traditionally been accorded to women in Indian society. As she puts it, ‘dowry goes with the daughter to the son-in-law’, thereby refuting the claim that dowry may be considered women's property. Sharma, ‘Women, work and property in north-west India’, p 163.

35 See F Agnes, Law and Gender Inequality, New Delhi: Oxford University Press, 1999.

36 See A Bilgrami, ‘Secular liberalism and moral psychology of identity’, Economic and Political Weekly, 4 October 1997, pp 2527 – 2540; and Smith, India as a Secular State.

37 See Gandhi & Shah, The Issues at Stake; and R Thapar, ‘Secularism and society’, Economic and Political Weekly, 24 August 1985, pp 1437 – 1438.

38 See B Agarwal, ‘Gender and land rights revisited: exploring new prospects via the state, family and market’, Journal of Agrarian Change, 3 (1 – 2), 2003, pp 184 – 224.

39 See JW Harris, Legal Philosophies, London: Butterworths, 1997.

40 See R Patel, Hindu Women's Property Rights in Eastern India; and S Basu, ‘Cutting to size: property and gendered identity in the Indian higher courts’, in RS Rajan (ed), Signposts: Gender Issues in Post-Independence India, New Delhi: Kali for Women Press, 1999, pp 248 – 291.