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From: yogi sikand <ysikand@yahoo.com> Date: Tue Nov 8, 2005 Subject: Memorandum: Indian Muslim Women's Agricultural Property Inheritance Rights Dear Friends: We are writing to seek your endorsement of the enclosed Memorandum asking the government to address the legal disadvantages in inheritance laws that Muslim women continue to face. Many of you had earlier endorsed the Memorandum for amending the Hindu Succession Act. That campaign was successful and the Hindu Succession (Amendment) Act 2005 was passed this August, greatly enhancing Hindu women's inheritance rights. However, the disadvantages faced by millions of Muslim women and Tribal women remain intact. In the enclosed Memorandum we are focusing on Muslim women. For Tribal women a longer process of legal codification will be needed, involving discussion with tribal communities. Muslims in India are governed by The Muslim Personal Law (Shariat) Application Act, 1937. This Act left out agricultural land from its purview, strongly disadvantaging women vis-? -vis this critical resource. This disadvantage can be overcome by amending the 1937 Act, in line with the Shariat, by deleting a phrase relating to agricultural land in Section (2) of the Act. The four southern states have already done so, thus setting a precedent. We are attaching Bina Agarwal's article of 17 October in the Indian Express, detailing all this. Some significant individuals in the Muslim community have already endorsed the Memorandum and we are contacting others. After receiving your endorsements, we plan to send the enclosed memorandum to the Prime Minister, to Mrs Sonia Gandhi, to the Law Minister, to MPs, and others who can influence this process. Timeliness is critical here if this is to move in the winter session of Parliament. We therefore look forward to your early response. With best wishes, Signed/- Bina Agarwal (Professor, Institute of Economic Growth, University of Delhi). (Tel: 24350077; Email: bina_india@...) Miloon Kothari, Malavika Vartak (Housing and Land Rights Network, Delhi) (Tel: 24358492; Email: hic-sarp@...) Colin Gonsalves, Shruti Pandey (Human Rights Law Network, Delhi) (Tel: 24319857; Email: slicdelhi@...) RSVP: Malavika Vartak: Telephone: 24358492. E-mail: hic-sarp@... MEMORANDUM FOR ENHANCING INHERITANCE RIGHTS OF MUSLIM WOMEN 27 October 2005 We as individuals and organizations from across India, working on issues of gender justice, human rights, law reform, widows??™ rights, and people??™s rights and livelihoods, welcome the passing of the Hindu Succession Amendment Act (HSAA) 2005. The amendments will empower millions of Hindu women in India. However, non-Hindu women ??“ in particular Muslim women ??“ still face notable legal disadvantages in inheritance, especially vis-? -vis agricultural land. Muslims in India are governed by The Muslim Personal Law (Shariat) Application Act, 1937. We are writing to urge that necessary steps be taken to amend this Act, in order to bring agricultural land within its purview, by deleting the phrase ???save questions relating to agricultural land??? from its Section 2. As per Section (2) of this Act, the Shariat superceded ???custom or usage to the contrary??? for all property, except agricultural land, as the basis of personal law for Muslims in undivided India, except Jammu & Kashmir. Later the southern states - Tamil Nadu, Karnataka, Andhra Pradesh and Kerala - extended the 1937 Act to include agricultural land by deleting the phrase ???save questions relating to agricultural land???. In other states, however, succession to agricultural land continues to depend variously on customs, tenurial laws, etc. In many states, such as, Delhi, Haryana, Himachal Pradesh, Punjab, Uttar Pradesh and Jammu & Kashmir, these tenurial laws and customs are highly gender discriminatory and at considerable variance with the Shariat. For instance, in UP, non-Hindu women??™s land rights (like those of Hindu women before the 2005 HSAA) are still subject to the UP Zamindari Abolition and Land Reforms Act 1950. Section 171 of the Act, which defines succession to a man??™s land, gives primacy to the male lineal descendants in the male line of descent. Only in their absence can a widow qualify. Daughters come even lower down. Tenurial laws in Delhi, Punjab, Haryana, HP and J&K give similar primacy to male heirs. This is contrary to the rights promised to Muslim women by the Shariat. Following the precedent set by the southern states, this anomaly can be removed by the simple deletion of the phrase ???save questions relating to agricultural land??? in Section 2 of the 1937 Shariat Act. The amendment would bring all property, including agricultural property, in line with the Shariat, and would go a long way in enhancing Muslim women??™s rights in this critical livelihood source. Vast numbers of Muslim women depend on agriculture for subsistence, many as de-facto household heads, as more men move to non-farm jobs. There have also been strong grassroots demands by Muslim women for agricultural land. In sum, we urge that a Bill be introduced in Parliament to amend the 1937 Shariat Act, by bringing agricultural land within its purview, as already done by some states. With best wishes, Signed/- Bina Agarwal (Professor, Institute of Economic Growth, University of Delhi). (Tel: 24350077; Email: bina_india@...) Miloon Kothari, Malavika Vartak (Housing and Land Rights Network, Delhi) (Tel: 24358492; Email: hic-sarp@...) Colin Gonsalves, Shruti Pandey (Human Rights Law Network, Delhi) (Tel: 24319857; Email: slicdelhi@...) 7, 2005 Monday, October 17, 2005 Columns Women??™s inheritance: next steps A look at the disabilities non-Hindu women face BINA AGARWAL The livelihood and empowerment prospects of millions of women who depend on agriculture for survival are affected by their legal rights in land. For many these prospects have been enhanced by the recent Hindu Succession (Amendment) Act 2005(HSAA) which deleted the gender discriminatory clause on agricultural land. But this benefits only Hindu women, leaving intact the disabilities facing non-Hindu women, especially Muslim and tribal women ??” something that should concern all of us who work for gender justice. Muslim women in India fall under The Muslim Personal Law (Shariat) Application Act, 1937. With this, the Shariat superceded ???custom or usage to the contrary??? for all property, except agricultural land, as the basis of personal law for Muslims in undivided India, except J&K. Earlier, Muslims (like most Hindus before the 1956 Hindu Succession Act) were governed by a mosaic of local customs, laws and practices, some in sync with the Shariat, most at variance with it. The ??™37 Act, by abrogating custom, enhanced most Muslim women??™s rights, since typically customs (except among matrilineal Muslims, as in Kerala), were highly discriminatory: some entirely excluded daughters, others placed them (and widows) very low in the succession order. In contrast, under the Shariat, a daughter and widow cannot be excluded by any other heir and are protected by the overall testamentary restrictions, even though their shares are always lower than men??™s. However, the ??™37 Act, excluded a critical form of property: agricultural land. Section(2) provides that: ???Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift, or any other provision of Personal Law, marriage, dissolution of marriage, including Talaq, Ila, Zihar, Lian, Khula and Mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions, and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).??? Later the southern states extended the ??™37 Act to include agricultural land by deleting the phrase ???save questions relating to agricultural land???. TN, Karnataka and AP did so in ??™49. Kerala followed in ??™63. Elsewhere, however, succession to agricultural land continues to depend variously on customs, tenurial laws, etc, with differing implications across the unamended states. In some, eg, Maharashtra, Gujarat, and Bengal, there was no strong presumption in favour of custom even before the ??™37 Act. Here, even without amendment, the Shariat could be presumed to cover agricultural land. The same holds for the parts of AP and Karnataka which were earlier in the former Hyderabad state, and where custom at variance with Mohammedan law was not admitted even before 1937. But in many other states, eg, Delhi, Haryana, HP, Punjab, UP and J&K, highly discriminatory tenurial laws and customs, at considerable variance with the Shariat, continue. These virtually exclude women from rights in agricultural land. For instance, in UP, with one-sixth of India??™s population, non-Hindu women??™s land rights are still subject to the UP Zamindari Abolition and Land Reforms Act ??™50. Section 171 of the Act, which defines succession to a man??™s land, gives primacy to the male lineal descendants in the male line of descent. Only in their absence can a widow qualify. Daughters come lower. Tenurial laws in Delhi, Punjab, Haryana, HP and J&K give similar primacy to male heirs. This is contrary to the rights promised to Muslim women by the Shariat. Notably, on agricultural land, Pakistani and Bangladeshi Muslim women are better off. In Pakistan the ??™37 Shariat Act was superceded by later laws. Finally, the West Pakistan Muslim Personal Law (Shariat) Application Act of 1962 included agricultural land and extended the Shariat to all of West Pakistan, except ???Tribal Areas??™ in the NWFP. The Act entitled Muslim women to inherit all property, including agricultural, with shares as prescribed by the Shariat. Pakistani women??™s groups played a key role in this reform. Muslims of East Pakistan (now Bangladesh), however, continued to come under the ??™37 Shariat Act. But here women were not disadvantaged since even before this Act customs contrary to Islamic law were not enforced in (undivided) Bengal: here the Shariat (by presumption) applies also to agricultural land, as outlined in Mulla??™s Principles of Mohammedan Law 1990, and confirmed by my discussions with Bangladeshi lawyers. Surely in India too it is time to remove this anomaly. Deleting the phrase ???save questions relating to agricultural land??? in Section 2 of the Shariat Act, would bring all property, including agricultural, in line with the Shariat. Although, women would be entitled to smaller shares than men, still this amendment would go a long way in enhancing Muslim women??™s rights in this critical livelihood source. Vast numbers of Muslim women depend on agriculture for subsistence, many as de-facto household heads, as more men move to non-farm jobs. Indeed one of the earliest grassroots demands by Indian women for land rights came from poor Muslim women in West Bengal who, in ??™79, told their panchayat: ???Please go and ask the government why when it distributes land, we don??™t we get a title? Are we not peasants???? These women and millions like them deserve an answer. But government land distribution is limited, and inheritance remains the main source for women??™s land access. On other aspects of inequality, the only Muslim countries with full gender equality in inheritance laws are Turkey and Somalia. In some others, like Bangladesh, women have debated whether the constitution should define personal law. My aim here is, however, more modest and the reform suggested vis-a-vis agricultural land is doable within the purview of the Shariat. The precedent for such amendment already exists in southern states. Tribal women are the second major category facing substantial disabilities in inheritance. Given the non-codification of their laws, tribal communities are governed by customs which (except under matriliny) discriminate against women. And even the limited customary land rights many tribal women enjoyed historically have been eroding. Attempts at gender-unequal codification in some northeastern states have been opposed by women??™s groups there. It is critical that any codification is along gender-equal lines. There is a window of opportunity today for reform-minded political leaders, activists and intellectuals to work together, to correct historically embedded gender disabilities. Let this chance not be missed. The writer is professor of economics, Institute of Economic Growth, Delhi |
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November08, 2005 - [India Thinkers Net]South Asianising & victimising Mubarak Ali >> |
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