Womens Rights And Discrimination In India Sociology Essay Example
Womens Rights And Discrimination In India Sociology Essay Example

Womens Rights And Discrimination In India Sociology Essay Example

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  • Pages: 10 (2583 words)
  • Published: August 3, 2017
  • Type: Research Paper
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Despite strides made towards equality, gender bias remains a prevailing form of discrimination in many societies. It is widely acknowledged that addressing this issue requires further effort due to the persistent oppression of women's rights, particularly regarding property rights and their unjust treatment.

Despite being a global issue, women face ongoing limitations in their rights and control over land, housing, and property. This inequality is not exclusive to India but can be observed worldwide. Various factors such as gender-biased laws, traditional beliefs, and male-dominated social structures contribute to the perpetuation of this disparity experienced by women. Particularly in war-affected societies, the effects are more pronounced. Women who are refugees, internally displaced or heads of households often endure extreme poverty and deprivation due to the lack of property rights.

According to Nobel laureate Amar


tya Sen, adult females without property rights face greater difficulty in accessing recognition for investing in agriculture or micro-enterprises. Sen, an expert on gender bias in ownership rights, points out that property ownership is often highly unequal in society. The distribution of basic assets like homes and land can be uneven. The lack of property rights not only diminishes the influence of adult females but also hampers their involvement and success in commercial, economic, and social endeavors. This type of inequality is prevalent worldwide, albeit with some regional differences.

The focus of this researcher is the inequality in traditional property rights in India, specifically in the State of Kerala, where there has been a matrilinear heritage for the Nairs community. This study aims to examine how these laws perpetuate gender bias and discrimination against women in terms of property ownership. Property rights have

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long been a contentious issue for women's rights activists, despite reforms through amendments and court rulings, true equality remains elusive.

Efforts have been made to unite Hindu jurisprudence across the state. When comparing the Mitakshara and Marumakattayam theoretical models of customary jurisprudence, one can observe that the latter promotes the fusion of Hindu jurisprudence. P.V. Kane, supporting the recommendation of the Rau Committee, emphasized that "the fusion of Hindu jurisprudence will be helped by the abolishment of the right by birth which is the basis of the Mitakshara School and which the draft Hindu Code seeks to eliminate." However, this study will primarily focus on how customary laws were originally biased in nature. The subsequent chapters will further explore this topic.

Section 23 of the Hindu Succession Act illustrates gender bias in the legal system. While the Act aimed to grant property rights to women, Section 23 restricts their enjoyment of these rights. Female heirs are not allowed to initiate division of property with their brothers. They can only receive a share if one of the brothers decides to partition the property. Additionally, the Schedule listing Class I heirs also demonstrates inequality.

The passage illustrates the unequal distribution of inheritance based on gender in customary laws. It highlights that while boys and their male descendants inherit a portion, girls and their female descendants do not receive anything. Additionally, it states that widows of deceased boys and grandsons are considered as Class I heirs, but the husbands of deceased girls or granddaughters are not entitled to inherit.

Nature and Scope

The objective of this project is to analyze gender bias in customary laws concerning property rights. The focus is solely

on this aspect and not on other forms of inequality that may exist. The researcher aims to provide factual evidence in support of the hypothesis by examining the laws and referring to relevant cases that further contribute to discrimination despite the legal provisions.

However, the main focus will be on the customary laws.

Research Questions

Are there discriminatory elements in customary laws? What are these laws and how do they differentiate based on gender?

An example of ongoing inequality within our system can be seen in the laws relating to inheritance. In the joint Hindu family, women are not acknowledged as coparceners. According to Schedule 1 of the Act, self-acquired property is transferred to survivors. Class I heirs consist of mother, widow, and daughter who are recognized as legal heirs when a Hindu male dies intestate.

The Dayabhaga School grants adult females greater rights than the Mitakshara School, specifically as coparceners. However, despite this, women's right to property through inheritance often gets limited due to the prevailing patriarchal sentiments. It is a common occurrence for fathers to write wills to ensure that their sons inherit all their belongings, thus preventing any portion of their property from falling into the hands of their daughter/daughters.

Regarding these biased laws, how have the courts approached them?

Given the blatant prejudice within these laws, there is little that the courts can do. Their hands are tied, forcing them to continue upholding these biased laws.

The Punjab High Court ruled that for case Kanshi v. Sant Lal and Anr, the suit on behalf of females disputing disaffection by males is unqualified and liable to be dismissed under usage.

What measures are being taken to stop

favoritism enforced by customary laws?

Five Indian provinces, namely Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra, have passed legislations to eliminate the biased aspects of the right by birth under the Mitakshara law.

The Kerala Joint Family System (Abolition) Act, 1976, also known as the Kerala Act, was passed by the Kerala Legislature in 1976. It was influenced by the recommendations of the Hindu Law Committee - the Rau Committee. This act abolished both the right of birth under the Mitakshara law and the Marumakattayam law. In contrast, when it became effective, the Andhra Pradesh Legislature granted unmarried girls the right by birth. This approach strengthens rather than eliminates the right by birth and addresses gender discrimination found in Mitakshara coparcenary. Following this model, Tamil Nadu (1989), Maharashtra (1994), and Karnataka (1994) also adopted a similar approach.

Chapter I: Discriminatory Laws: A Global Background

The presence of gender discrimination in different religions is evident through biased customary property laws. Both testamentary and intestate property laws display discrimination against women. Throughout history, women have not been considered capable of being executors of property, and control over land has traditionally been a privilege reserved for men. This researcher advocates for granting property rights to women for reasons beyond mere equality.

In various regions of the world, households, communities, and societies experience destruction due to civil war, neighboring state invasions, and interethnic conflict. When periods of violence and conflict occur, the resulting devastation affects both tangible resources and physical belongings. This is especially detrimental for low-income populations. However, the destruction goes beyond material possessions. It also includes the breakdown of community unity, government institutions, community power structures, and socioeconomic

support networks. As a result, the most vulnerable individuals such as women and children are left destitute with limited resources for their daily survival.

Often households flee the force and devastation to other parts of their states or to other states, leaving most of their properties and assets behind. Additionally, women are also unable to invest in small-scale industries or other micro-enterprises due to the absence of property rights. The process of rebuilding communities' societal structures and institutions is slow and uneven. However, restoring civil and human rights to all groups, including women, is the foundation for reconstructing a democratic post-conflict society.

Land and lodging are highly significant in various aspects. Property rights are crucial for economic development, social equity, and democratic governance. Land holds immense value as cultural heritage and a productive resource, universally acknowledged for its importance. Additionally, its significance extends to the societal and psychological well-being of rural households.

The task at hand is to improve societal fairness while also striving for peace, security, and reconstruction. However, it is important to view peace as more than just the absence of war and force. Similarly, reconstruction should be recognized as more than simply building infrastructure like bricks, roads, and telephone networks. Additionally, security should be defined as more than just having a strong military force. It is astonishing to see the numerous ways in which inequality is perpetuated. There are no generic remedies for the problem of inequality, and the manifestations of inequality can also vary over time. In fact, this researcher would argue that in the Indian context, the forms of inequality have shifted from being primarily material to more sociological aspects over time.

Despite continued

attempts to modify and enhance legislation, gender inequality remains prevalent. Although women have made strides in obtaining more rights, men still retain their innate advantages. Gender inequality takes on diverse forms and impacts individuals of all genders. To fully grasp the adverse consequences of gender inequality, it is imperative to address the obstacles faced by women while also recognizing the issues it presents for men. The extent of these connections varies depending on the specific type of gender inequality. Furthermore, various inequalities often reinforce each other, emphasizing the significance of acknowledging their interconnections.

Contrary to popular belief, inequality is not more widespread in Eastern and South-Asian countries than in the West. However, the types of inequality may differ, but favoritism exists globally. For instance, India, Bangladesh, Pakistan, and Sri Lanka have seen female heads of government—a feat that both the United States and Japan still haven't achieved. In fact, Bangladesh presently has women serving as both Prime Minister and Leader of the Opposition, raising doubts about any man's chances of reaching a leadership position soon.

Intellectuals like Gargi and Maitreyee in the Upanishads, dating back to the 8th century B.C., have influenced women's rights in India. However, it is important to note that even after three thousand years, gender disparity still persists in society. The first clear expression of gender equality came from a woman's perspective.

The main focus of the researcher is on the economic aspect. Property rights, such as land, water, and trees, play a crucial role in governing natural resource management patterns and the well-being of individuals, families, and communities who rely on these resources. Policies that influence property rights can greatly impact economic growth,

equitable distribution, and sustainability of the resource base.

By understanding how natural resources are owned by the government and decision-making processes surrounding them, we can develop supportive policies for promoting widespread economic growth, especially in rural areas.

Property rights extend beyond mere declarations of land or resource ownership and include regulations and access to resources. If we define property rights as an individual's reliance on collective support for their benefit claims, then these rights describe interpersonal relationships. The success of any policy, be it aimed at preventing resource depletion or degradation, improving the resource base, promoting sustainable resource use, or enhancing household welfare, depends on accurately anticipating individual reactions.

Time and time again, however, actual responses differ from expected responses. Nonetheless, narrowing our focus solely to the biased property rights in India, the main emphasis of this discussion will be the various acts: The Hindu Succession Act, 1956; The Indian Succession Act, 1925; and The Muslim Torahs - the Hanafi Law of Inheritance. Chapter II provides a brief overview of discriminatory customary laws in India, specifically in relation to property. Hindus, for example, follow the Mitakshara School of jurisprudence which bestows inheritance rights to men over women. The Hindu Succession Act, rooted in customary Hindu laws, applies to those who follow Aliyasantana Law, Sthanamdar Law, Marumakkatayam Law, and Nambudri Law. This act has several discriminatory aspects such as preferring patrikins over blood relations and prohibiting widows who remarry from inheriting the deceased's property. Despite proposed amendments aiming to make succession a relatively non-discriminatory issue, customary laws remain biased and discriminatory in their mindset.


Among tribal communities, discrimination against women persists due to customary laws that are completely uncodified. This

issue was brought to attention in 1982 when members of the Ho tribe, including Madhu Kishwar, Sonamuni, and Muki Dui questioned the legitimacy of sections 7, 8, and 76 of the Chotanagar Tenancy Act for violating the right to equality. In 1986, Juliana Lakra also challenged these provisions through a writ petition. The argument was that this act only allowed descendants in the male line to become raiyats.

The tribunal, however, dismissed the mentioned misdemeanor claim due to the potential chaos it would cause in the field of law. Despite Justice Ramaswamy's insightful minority judgement, it is the majority judgement that governs the tribal sequence.


Christians face a different form of discrimination under The Indian Succession Act. This act highlights a notable inequality: if a widow is excluded by a contract from inheriting her husband's estate, she will not receive any distributive portion.

Besides, in India, there is a significant population of Christian tribals who are completely unaware of their rights. The realization of property rights for women in India is still a distant dream.


The laws governing Muslim succession were more biased than any other laws at one point in time. Only men, who were considered the protectors and caretakers of land, were granted inheritance rights. The Holy Quran explicitly states that a man is the rightful owner of the wealth he possesses for his lifetime.

However, women now have the opportunity to inherit property as mothers, wives, daughters, and sisters due to increasing consciousness and modernization.

Chapter III: Decision: Escaping the Leash of Gender Discrimination

In 2005, significant efforts were made to put an end to discriminatory and regressive inheritance laws. The Hindu

Succession (Amendment) Act, 2005 aims to eliminate most of the inequalities. The amendment grants equal inheritance rights for women in agricultural land as men. Even married daughters will be coparcenors in joint family properties.

Muslim adult females in India are protected by the Muslim Personal Law (Shariat) Application Act, 1937, which abolishes discriminatory practices and ensures that widows cannot be excluded from inheritance. Although their share is less than men's, testamentary limitations provide them with protection. To address the issue of discrimination in property rights, a Reformed analysis of rights is necessary, going beyond the legal title holder. Instead, we must consider the complex set of rights held by different individuals for any given resource unit. These rights include access, withdrawal, management, exclusion of others, and the ability to transfer or dispose of rights. Men and women often have different rights when it comes to agricultural activities such as cultivating different crops, grazing livestock, or harvesting on the land. They also have different rights regarding water usage for irrigation, washing, watering animals, and other activities. Additionally, they have rights to various products from trees such as lumber, fruits, leaves, firewood, and shade. Land rights have received significant attention in this regard.

By and large, it is easier to define the boundaries of the resource unit when considering it as a fixed and enduring asset. In order to effectively change women's property rights and their overall status, it is important to have knowledge about the production systems, resource base, labor distribution, and bargaining power of both men and women from different categories. It is crucial to also consider local norms regarding fairness and how resources are distributed

within the broader network of production activities and access to benefits. Additionally, understanding the effectiveness of these norms and practices in sustaining actual equity is essential. However, these factors are not static; policy interventions should be anticipated in order to alter these patterns.

Studying the regulations governing resource distribution and production systems can help anticipate their potential changes, but no mechanical conclusions can be drawn.

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