Lata Devi, a resident of Kalpa village in Kinnaur district of Himachal Pradesh, died a sad woman in 2014. In 2010, when her father died, the family property should have rightfully gone to Devi and her sister. But, the sisters, belonging to a tribal clan in Kinnaur, were denied that right and their father’s property was transferred to their uncle, who later gave it to his son.
Devi fought for her rights for years but died before she could enjoy those rights. “What happened to her was so unfair,” Dolma Negi, a social activist and head of a local self-help group in Kinnaur, located about 250 kms from Shimla, the state capital of Himachal Pradesh, told Gaon Connection.
Like Devi, there are hundreds of thousands women in predominantly tribal districts of Kinnaur, Lahaul Spiti, and Chamba districts in the Himalayan state who, despite the recent Supreme Court ruling that daughters in a Hindu undivided family have equal rights to inherit the ancestral property of their father, are still struggling to assert their rights in matters of inheritance.
And what is hindering them is a nearly century old customary law, Wajib Ul Urj. This 93-year-old customary law came into existence in 1926 and permits only men to inherit property, if it is not bequeathed.
Wajib Ul Urj is still extant in these tribal districts of the state, even after the amended Hindu Succession Act, 1956, that grants equal rights to men and women, came into being.
“Wajib Ul Urj is an important part of the customary law in the Kinnaur tribe,” former gram pradhan, Deep Chand Negi who lives in Kinnaur, told Gaon Connection.
Local tribal communities in the state continue to cite this law when it comes to property disputes. They believe it safeguards tribal rights. “There were not many resources back in the 20th century. Women were denied these rights to prevent property from going to people living outside the tribal area, in case a woman married an outsider,” Kamlender Negi, member of a social activist group of a tribal community in Nichar, Kinnaur, told Gaon Connection.
But women’s rights activists argue that Wajib Ul Urj defies the law of the land. “Why are the tribal women being deprived, when Indian law clearly states they have an equal right in the family property?” asked Rattan Manjari, founder of Mahila Kalyan Parishad, a Kinnaur-based women’s rights group fighting for the equal rights of women for the last three decades.
“The Supreme Court’s judgement last month , that held that daughters will have equal rights in the ancestral property as the sons, has given us hope and we will continue fighting for the cause till we achieve it,” said Manjari.
Legal tussle over women’s property rights
In October 2002, the legal battle for tribal women’s property rights began in the High Court of Himachal Pradesh. The daughters of a man from the Gaddi tribe moved the Chamba district court, and the judge ruled in their favour, granting them property rights. However, the son of the man appealed against the district court’s order in the state’s high court in 2003.
In a landmark June 2015 judgement, Justice Rajiv Sharma of the High Court of Himachal Pradesh upheld the district court’s order thereby favouring the daughters. The particular judgement set a precedent which allowed tribal women to inherit share in family property according to the Hindu Succession Act of 1956. “The daughters in the tribal areas shall inherit a property in accordance with the Hindu Succession Act of 1956 and not as per customs. This is in order to prevent women from facing social injustice and all forms of exploitation,” he ruled.
But, Justice Sharma’s judgement was challenged in the apex court in February 2016 by two petitioners from Lahaul Spiti. The apex court stayed the high court’s order and the case is still pending for more than four years now.
Meanwhile, in 2017, Ratan Manjari and the Mahila Kalyan Parishad filed a public interest litigation under Article 32 (Right to Constitutional Remedies) in the Supreme Court, demanding property rights for tribal women in Himachal Pradesh. It was withdrawn after one hearing in 2018. In 2019, Manjari filed another petition in the state high court.
Many people are opposed to granting property rights to women as apple orchards are coming up in the tribal areas and if rights are granted to women, they fear that orchards will further be divided and family incomes will fall, claim some residents of Kinnaur.
Still discriminated against
Despite the June 2015 ruling of the high court, tribal women in the state continue to be discriminated against. Because of Wajib Ul Urj, single women, widows and those who are abandoned are the worst off, Lara Tsering, a social worker from Lahaul and Spiti told Gaon Connection. “They are forced to be dependent on the male members of the patriarchal family,” she said.
According to Manjari, male members in the community take offence when the women speak up against the century old law. “Those who know the law and the system are getting their share in the property. Wajib Ul Urj is only for the poor and poor women are suffering,” she said.
For three decades now, besides meeting politicians and submitting memorandums, Manjari has visited tribal women in gram panchayats and roped in hundreds of women for the cause through signature campaigns.
Those from the tribal community who are still in favour of Wajib Ul Urj say the law ‘protects’ tribal land and property. They believe there is no discrimination as there are systems already in place to look after the interests of single women. Gift deeds, Wills and the local laws are sufficient to safeguard women, they believe.
Customary laws: protection vs discrimination
In his research paper titled, Customary laws: a study of Kinnuar, published in 2013, researcher Shiv Raj described one of the customary laws called bitho-pono. At the time of marriage a separate house or room is given to a woman by the bridegroom’s parents in the legally binding custom, bitho–pono. In case the woman leaves her husband’s home, this property continues to be hers. This agreement is executed through a legal agreement in presence of a middle person or a witness.
But, activists counter this by arguing that if women’s rights are indeed being protected by local arrangements, why should anyone object to implementing the Hindu Succession Act, 1956 and The Hindu Succession (Amendment) Act, 2005?
“Now our girls are marrying outside the district to non-tribals. Several others have settled in the region and established their business. So, there is no point in depriving women of property rights,” Manjari reasoned.
To be or not to be
Despite women activists filing legal cases and launching campaigns, the issue of women’s inheritance rights has never been given any traction politically, complain activists.
“We have approached politicians. I even apprised former Prime Minister Indira Gandhi about it in 1971-72 when I wrote to her office where it was acknowledged,” said Manjari, but, polls were never contested on this issue, she regretted.
“Politicians assure us they will do something about it, but there is always some other local issue that overshadows the property rights debate, and they do not want to antagonise the majority male votes” rued Reema Negi who heads a women’s rights group at Batseri village of Kinnaur.
A few social activists agree that the tribal law ought to be amended, but with a rider that will prevent tribal land from being transferred to non-tribals.
“These customs and rituals have existed for decades, to safeguard our culture and land from powerful outsiders. You see, how other parts of Himachal Pradesh are dominated by outsiders now. Not only do they own land or business but they are also influencing the culture and customs,” SD Negi, a Kinnaur based social activist, told Gaon Connection.
“We want to safeguard our interests. We are all for giving the inheritance rights to women, but there should be some riders, so that outsiders do not occupy land here and oust the tribal communities,” he added.
Meanwhile, polyandry continues
While tribal women in the state are denied rights to the family property, polyandry is still practised in Himachal.
Wajib-ul-urj stipulates that if a husband in a polyandrous marriage dies, his share is inherited by the surviving co-husbands of his wife.
Local rules like jashthang and konchang ensure the property is shared between the sons, and not daughters. Jashthang means the right of the eldest son, and konchang means the rights of the youngest son. The eldest son is given the best farmland and the rest of the property is divided amongst the others, while the youngest one gets the ancestral house.
However, the woman can inherit the property if her father bequeaths it to her and her husband as hibba or a gift deed. But, it is mandatory for the girl’s husband to be mentioned in the hibba, and in the case of the woman or her husband died, the property goes to the nearest male kin of the husband.
Meanwhile, if a person dies a widower and without a male child, his property does go to his unwed daughter but she is not allowed to sell or gift or divide that property. If she weds, the property goes back to the paternal male heir who could be either an uncle or a male cousin.
This is why Lata Devi of Kalpa village, who died in 2014, could not get the ancestral property, which went to her uncle and his son. And, the struggle of tribal women in Himachal continues.
