Challenging The Denial Of
Land Rights To Women
We reproduce here a letter written by Madhu
Kishwar to Justice Bhagwati, chairman of the
committee for the implementation of legal aid. It was admitted into
the supreme court as a
writ petition on August 20, 1982. It was followed by a formal writ
petition jointly filed
by Maki Bui, her daughter Sonamuni, and Madhu Kishwar. Maki Bui
and Sona are Ho
tribals who have challenged the validity of the law which has unconstitutionally
right of Ho tribal women to inherit family land and other related
assets. The state of Bihar,
which upholds this law, is a respondent in this case.
IN December 1980,1 went to Singhbhum as a member of the women’s
enquiry committee sponsored by the All India People’s Union
for Civil Liberties and by Manushi, a journal about
women and society, of which I am the editor. The purpose of this
committee was to conduct an enquiry into alleged atrocities against
tribal women by the Bihar military police, following a clash between
demonstrating tribals and the Bihar military police in Gua, Singlibhum
district, which had resulted in police firing in which 14 tribals
The most frustrating problem faced by the committee was the difficulty
in getting the victims to attest to having been raped, even though,
in many cases, numerous tribal men from the areas where incidents
had occurred, testified before the committee, giving full details
about these rape cases. My initial puzzlement at this led me to
try and flind out the reasons for this imposed silence.
During the course of this enquiry, visited many additional villages
on the same December trip, and then returned to Singhbhum in June
1981 and again in May 1982 to gather more information. In all, I
visited over 20 villages, and spoke to more than 10 women who admitted
to having been raped, and to dozens of others too, about the social
and economic consequences of being identified by the community as
a victim of such a rape. came to learn that the Ho women who are
identified by the community as victims of rape by someone outside
the tribe, automatically lose their economic, social and ritual
rights. They are considered ritually impure—even water is
not accepted from their hands or offered to them. If married, their
husbands have the right to divorce them without providing for them.
If unmarried, they lose their usufructory right over their parental
property. They are usually forced to leave their home as well as
their village. Often, the only means of survival most of them have
left are begging, prostitution and migration to the cities where
they end up as bonded labour in severely exploitative employment
such as in the brick kilns.
When I enquired more closely into the matter, 1 found that Ho women
are discriminated against in many other serious ways, on the basis
of sex alone. This discrimination is being given dubious legitimacy
through a distorted interpretation of customary tribal law. The
custom that has the most disastrous consequences for the lives of
those Ho tribal women whose families have not already lost their
land either to the government or to other usurpers, is that which
denies them the right to own or inherit any land. They are being
permitted only limited usufructory rights in the family land, whether
they are living with their parents as unmarried daughters, or after
their marriage, in their marital home.
Among the Hos, at least 30 per cent of the agricultural operations
are performed by women. Except for ploughing, which is ritually
prohibited for women, all other agricultural operations are essentially
carried on by women. In fact, women are the primary cultivators
among the Hos, as is the case amongst tribal communities in most
parts of India.
Despite their being the mainstay of agricultural operations, even
their usufructory rights to land are so limited and subject to the
arbitrary decisions of the adult male members of the family, that
many women are in effect reduced to the status of mere workers on
the family land, and are provided with bare maintenance as long
as they are useful as labourers. I give below a summary of what
is being passed off as customary tribal law as it relates to women’s
rights in land.
1. As an unmarried daughter living in her parental home, a Ho woman
has no inheritance right in her family’s land. The land can
only be inherited by sons or grandsons or other male descendants.
Even in cases where there is no direct male heir, the woman still
does not get any share in the land. The land goes to the nearest
male agnates (relatives on the father’s side) and if there
are no eligible agnates, then the land becomes the common property
of the village community represented by the Munda (headman).
2. If a man dies, leaving a widow or a daughter, she is entitled
to maintenance from the next male relative who takes the land and
receives the gomong (bride price) on the daughter’s marriage.
This makes them totally dependent on their male relatives for their
daily sustenance despite the fact that they may continue to work
3. In theory, a widow has usufructory rights in the family’s
land for her lifetime. But in practice, when there are adult male
heirs, the land is often taken over by them and there is no guarantee
that her usufructory rights will be respected. An unmarried daughter
has usufructory rights in the family’s land only upto the
time of her marriage. In both cases, they have no right to dispose
of the land as and when they find it necessary. However, the male
relatives who inherit the land, should they decide to mortgage or
otherwise dispose of it, do not even need to consult those women
of the family who have usufructory rights.
4. In cases where a woman gets raped by a non-tribal man, even
her usufructory right in the hand is denied to her.
Consequences Of Denying Ho Women Their Rights In The Land
1. A much larger proportion of Ho women remain unmarried than
is the case for women in other non-tribal communities—in order
not to lose their rights in their parental land. As wives, their
rightts in the land are much less secure as they may be abandoned,
forced or otherwise forced to leave the marital home without being
assured of maintenance.
In the tribal community, an unmarrtied or widowed woman exercising
her usufructory rights over land becomes very vulnerable the rapacity
and landhunger of unscrupulous male relatives who think they can
grab the land if they can only get her out of the way. Thus, she
is often either forced to surrender her lifetime usufructory right
or she becomes a target of violent attacks of various kinds.
In Chaibasa court, many of the lawyers brought to my attention
a number of cases wherein single women — unmarried or widowed
— had been murdered by their own relatives. In some of these
cases, the ostensible reason given for killing them was that they
were witches. But the real motivation appears to be to eliminate
the woman and take away her land. This is only one of the many ruthless
means that male agnates are successfully adopting because the Ho
women’s legal customary rights to the family’s land
are so precarious and hence difficult for the women to protect.
Knowledgeable social workers from the area confirmed that there
are many ways in which women are ‘terrorized or done away
with, in order to cheat them of their limited land rights. I personally
interviewed a number of Ho women who have either witnessed, or were
themselves subjected to, such attacks. I cite some cases as examples
(i) In Lonjo village (Sonua block, district Singhbhum), I met a
Ho woman by the name of Maki Bui, who appeared to be about 50 years
of age. Her husband had died about three months before I met her.
She told me that she feared for her life, that she might be killed
any day by her husband’s younger brothers and their sons.
She has only one married daughter, and no sons. Her husband’s
agnates want to take away her land. They are putting all kinds of
illegal pressure on her to surrender her lifetime usufructory right
to her land. They have threatened that if she ploughs her land,
they will forcibly takeaway the harvest. Since she lives alone with
no kin support in the village, (only her husband’s relatives
live in her marital village and one of them is the Mukhia), she
feels extremely vulnerable when threatened with violence. She says
her husband’s agnates have threatened to kill her. One night,
they even tried to break down her door with an axe, in an attempt
to murder her. She knows that if she is murdered, fear will prevent
anyone from volunteering to bear witness, since one of her husband’s
agnates is the Mukhia of the village. She wants her land to go toher
daughter, after her death. However, according to the way things
are done in her village, her daughter will not be allowed to inherit
the land. These relatives are not even letting her plough her fields.
She has put the matter before the panchayat but it is unlikely that
she will get any support there. Women are not allowed to be panchayat
members. She feels so unsafe in this village that she wants to sell
or mortgage her land and go and live elsewhere. But Ho women are
not allowed to sell or mortgage their land because they are considered
maintenance holders, not title holders. She feels thatas part of
the conspiracy to do away with her, her husband’s agnates
have already started accusing her of being a witch.
(ii) Another case is that of Sumati Kui and
Gujri Kui of Kainua (P.S. Tonto). Sumati Kui is a young woman
who lives with her old, widowed mother. Sumati Kui chose to
remain unmarried so that she and her mother could live-on
the family land. She had an affair with Dobro Ho. Through
him, she conceived and gave birth to a baby. According to
the two women, the baby died soon after birth, but their relatives
have implicated themin a murder case — because they
want their land.
Most of the witnesses against her are her near agnates. The
following is the testimony which her cousin brother Singrai
Tubid gave in court :
“Jugni Kui had filed a case against my father and brother
for harvesting the paddy from her field. The case continued
for some time... It is true that my father and brother have
been quarrelling with Jugni Kui for a long time. Jugni Kui
has no son. Sumati is her only child. We are her near agnates.
If Sumati Kui were to leave her mother Jugni Kui and go somewhere,
then we would inherit all her land. Ever since the land dispute
started, I have not been on speaking terms with Jugni Kui...”.
Maki Bui and her daughter
But the point is that whichever way the case is decided,
the women are likely to end up landless and destitute because (a)
if Jugni and Sumati are sentenced to a prison term on the charge
of murder, the land will be taken over by the agnates but (b) if
they are acquitted, most of the land is likely to have been mortgaged
by that time. I was told that they had to spend about Rs 200 for
their bail and every visit to the court costs them at least Rs 20.
These women can only raise money by mortgaging their land, since
they are very poor.
(iii) To cite one more case of the many that I got to know about:
Raimuni Kui of village Dolesai (P.S. Majhgaon) was murdered during
the night between 7.1.74 and 8.1.74. She was the second wife of
Bara Jumbal Kui who had married her in his old age because he did
not have a son from his first wife. He owned 60 to 70 bighas of
land. The agnates of Bara Jumbal Kui were unhappy with this marriage,
because if he had not married, then, as soon as he died, they would
have got his land. After her marriage to Jumbal Kui, Raimuni Kui
acquired a lifetime usufructory right in her husband’s land.
The agnates were afraid that in case she gave birth to a son, they
would altogether lose their rights in Bara Jumbal Kui’s land.
On 7.1.74, she went to Haatgamaria weekly market. On her way back
in theevening, she stopped at Balandia village and had hadia in
the house of Jogin Pingua, the Mukhia of the village. She wanted
to stay on for the night in Jogin Pingua’s house, but her
husband’s male agnates who were accompanying her, persuaded
her to come along. On the way to her village, she was murdered in
Kharband forest. Her throat had been cut with a taangi. All the
accused in the case are the agnates who are to inherit the land
if there is no direct heir. During the investigation, Jogin Pingua
identified the accused agnates who had left his house, in her company,
and were to have accompanied her through the forest to her village.
3. The loss of usufructory rights of tribal women due to rape
by dikus (outsiders ; non-tribals) has been increasing as the tribal
society becomes increasingly invaded by the outsiders and the immiserization
of the tribal peasantry forces the tribals to seek outside employment
in order to survive. Women constitute the bulk of this desperate
migrant labour force. Wherever they are forced to seek work, be
it in mines, in brick kilns, or on irrigation projects, as agricultural
labourers or as domestic servants, they are subjected to sexual
abuse and exploitation. But even when they are residing in their
villages, they are not safe from sexual abuse by male outsiders
such as the forest guards and the police.
4. Ho women who have usufructory rights over their land are often
dragged into unnecessary litigation by male relatives. The only
time when women are allowed to raise money by mortgaging their land
is when they need money to meet litigation expenses. Ironically,
in all too many cases, they lose their land either way — either
by losing the court case or in trying to pay the expenses of litigation.
And very often they are dragged to court with precisely this end
Tribal Immiserization And Women’s Deteriorating Status
The way in which tribal women are being treated today is of course
alien to the traditional tribal way of life. Anthropological studies
consistently describe how traditional tribal societies were far
more egalitarian and just in defining the relationship between men
and women. Historically, women’s relatively favourable status
among the tribals deteriorated significantly as the tribal societies
were subjugated by outsiders — leading to the economic, social
and cultural immiserizationof tribals. It is well known that the
relative status -economic, social, ritual — of tribal women
within their community is generally far superior to the status of
women in almost all other communities in India. This is borne out
by many indicators — high labour participation of tribal women
in agriculture and in gathering forest products; greater freedom
of choice in marriage and divorce; greater freedom of movement;
predominance of tribal women in marketing; prevalence of bride price
rather than dowry. An especially salient indicator is the fact that
among Ho tribals in Bihar, as is true for scheduled tribes in general,
the sex ratio is in favour of women (1,041 women per 1,000 men)
whereas among almost all other communities in India, the sex ratio
is in favour of men (all India figure: 935 women per 1,000 men).
The decline in the position of Ho women has a long history. From
the 18th century, this area came under British control The British
created a sedentary peasant population by enforcing a series of
land settlement regulations to facilitate land revenue collection
and exploitation of the area’s natural resources, and to make
their political and military control easier. With these settlement
operations, the tribal society was forced to move from a form of
communal ownership towards individual land ownership which placed
proprietary rights almost exclusively in the hands of men. This
resulted in the corrosion of the tribal way of life and culture,
and the tribal society became more stratified. With land ownership
vested in men, the tribal family moved towards a more patriarchal
Originally, the tribals practisedshifting agriculture along with
gathering of forest products. In such a situation, it is not land
but human labour which is the most valuable resource. Along with
the imposition of sedentary agriculture by the British, came forms
of outside exploitation, which, among other things, led to the tribals
losing a large proportion of their land in the following manner
1. The government appropriated huge areas of tribal land, declaring
them to be “reserved or protected” forests, and severely
restricting the original usufructory rights of the tribals to gather
2. Huge amounts of land have been taken away from the tribals,
for mining operations, without giving them even minimally adequate
compensation. In addition, the local tribal population is alnost
always denied even menial jobs in these mines.
3. Merchants and peasants from north Bihar and other areas are
appropriating tribal lands, using a variety of semi-legal and illegal
4. Huge industrial complexes such as Jamshedpur and mining towns
like Naumundi have destroyed hundreds of tribal villages and rendered
tens of thousands of tribals homeless and destitute. The usual promise
that the afflicted tribals would be given adequate compensation
and jobs in the industry or mine which displaced them from their
land, were, as usual, not kept.
5. The construction of huge hydroelectric projects and dams is
uprooting hundreds of tribal villages, further accelerating landlessness
among the tribals.
This has resulted in a state of
acute land-hunger among the tribals. This is not due to an
increase in tribal population, as is often suggested. Rather,
it is the result of systematic robbery of tribal lands by
outsiders.The tribals are being hounded out of their lands
without any alternative source of livelihood being provided
In a situation of settled agriculture, where the ever-diminishing
stock of triballand becomes their most prized possession,
labour is no longer so valuable. As men become the sole owners
of land,women and their labour contribution get increasingly
devalued. They get to be more and more peripheral —
economically, politically and ritually. Today, the women have
been rendered powerless in the Ho community— excluded
from the tribal panchayats and other political institutions.
The only thing that keeps these women from being totally suppressed
is their continuing major rolein agricultural operations.
This gives them a better chance of survival than women have
in many other Indian communities. However,heir powerless-
ness rooted in their loss of land rights is threatening their
very survival. Therefore, they have no source of support —
inside or outside the community.
The Existing Practices— Both
Illegal And Unconsti-tutional
1. The practice of denying to Ho tribal women their legitimate
rights to inherit and own their lawful share in their family’s
land constitutes discrimination againstwomen on the basis
of sex alone.This violates articles 14 and 15 of the constitution.
These articles mandate equality before the law for all persons,
and prohibit discrimination on grounds of sex. This unjust
practice has been sanctioned by the government due to its
misunderstanding of customary Ho tribal law. However, even
if the government were correct in its identification of this
practice as part of tribal customary law, it would
still be violative of the fundamental
|rights mandated in the constitution, since article 13 clearly states
(2) “The state shall not make any law which takes
away or abridges the rights conferred by this part, and any law
made in contravention of this clause, shall, to the extent of the
contravention, be void.
(3) In this article, unless the context otherwise requires, (a)
‘law’ includes any ordinance, order, by-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law.” (emphasis mine)
2. The constitution in article 300A, states that “No person
shall be deprived of his property save by authority of law.”
There is no authority of law or legal mandate for this practice
of denying Ho tribal women their property rights. The only claim
that has been made is that tribal customary law sanctions this discriminatory
practice. But this is a direct violation of due processes of law,
indeed of any legal sanctions whatsoever.
Furthermore, there is no evidence that traditional tribal custom
supports such discriminatory practices. In fact, it is a more recent
distortion that came into tribal society as a result of the influence
and intervention of outsiders, and increasing land-hunger. The tribe
itself has no written record of these supposed customary practices.
The only written records available are those written by the intruding
outsiders, for example, the British land settlement records, gazetteers,
census reports and anthropological studies. There is good evidence
to believe that British settlement records are suspect because of
the way they took away the existing rights of women when creatingthe
initial individual land ownership records which superseded the traditional
tribal communal ownership practices.
even when the matter in dispute relates to a matter so fundamental
as a woman’s right to her share in the family’s land,
is obviously a denial of her rights under due process of law.
All the available records are
an inadequate basis for deciding cases in courts of law since
they not only give widely varying descriptions of tribal practices
but also fail to indicate the sources of their information
and the methods used in collecting and assessing this information.
In addition, there is no evidence of any tribal oral tradition
in support of the assertions made in the various governmental
and anthropological studies. Therefore, any court decisions
based on such dubious records do not constitute due process
or authority of law.
In fact, there is another way that tribals are being denied
their right to due process of law. The highest court of appeal
presently allowed these tribals in land matters is the commissioner’s
court at Ranchi, according to Chhota Nagpur tenancy act. They
have no access to the channels of appeal available to all
citizens, namely, the high court and the supreme court. This
blockage of their constitutional right to appeal has also
accelerated the pace of land alienation.
In addition, the complete exclusion of women from
the tribal village panchayats,
3. The framers of the constitution of India emphasized the need
for special laws to promote the interests of the weaker sections
of the people, and in particular, of the scheduled tribes, and of
women. The directive principles of state policy assert that they
shall be protected from social injustices and all forms of exploitation
(article 46, article 15 (3) (4)), and that nothing in any other
part of the constitution shall prevent the state from making any
special provision for their advancement. (article 16(4)).
However, in this case, it is clear that the supposed special provisions
allowingtribals to be governed by their customary practices in matters
of inheritance are not only based on an arbitrary selection of tribal
practices but also override the constitutional rights of Ho tribal
women, and only allow for discrimination against them. This has
promoted backward social development instead of advancement.
Moreover, in almost all other matters, including those where special
protections and provisions are imperatively needed, tribal customary
practices and rights have been superseded by national and state
criminal and civil laws. For example, it is well known that till
very recently the right to gather forest produce was acknowledged
as an important tribal right over the forest land they inhabited.
Today, the exercise of most of those same rights is being defined
as theft, because the provisions of various forest and criminal
acts have unilaterally and arbitrarily overridden traditional tribal
rights and practices.
It is ironical that while the constitutional provisions emphasize
special protection for tribals, the thrust of government policy
is to recognize the legality mostly of those tribal practices which
will perpetuate injustice, exploitation, poverty and misery for
the tribal population, especially for the women.
4. Most Indian women have some statutory legal rights. For example,
those stipulated in the succession act of 1956. In the absence of
any valid statutory regulations providing for succession rights
to land for Ho tribal women, the least that needs to be ensured
is that these women get the benefit of the constitutional rights
of all citizens. Considering that the bulk of the labour performed
on the family land is done by women, common law rights as applied
to family assets and their apportionment to individual members require
that women’s labour contribution be recognized as determining
their share in the family land.
As the editor of Manushi — a journal that devotes itself
to the cause of women’s rights in India, the plight of these
Ho women who are made to live in fear for their very lives and who
are being driven from their land into destitution, is of vital interest
to me. I think it is vitally important that this case be placed
before the supreme court in order to put an end to these unconstitutional
practices. I am ready to assist the court in whatever manner is
necessary with regard to this case.
by: Madhu Purnima Kishwar and Maintained by: Ravinder
Copyright © 2006, Manushi Trust, All Rights Reserved.