By Varda Saxena
Introduction
The inherent nature of the Indian community was never completely patriarchal and patrilineal. There were Southern regions and North-eastern states which had indulged in matriliny and matriarchy since their origination.[1] However, the imposition of Victorian morality by British courts and legislation on the Indian Society has alienated the communities from their roots and origins. Additionally, such impositions have created an oppressive framework that acts against the interests and welfare of women in these communities.[2] In this article, we explore the changes in the inheritance systems of various tribes from the northeast, the decline of matriliny in colonial Malabar, and some suggestions that could uplift women’s socio-economic status. To substantiate this claim, one can start by studying the model of the communities of Dimasa and Garo.
These communities are placed under the Sixth Schedule and have recognised community ownership of resources. The Aka community resides majorly in the Thrizino circle of West Kameng district of Arunachal Pradesh. Aka stands for “Painted” so they also call themselves “Hrusso”. They reside in a combination of topographical locations which makes them isolated to an extent. Hence, they do not indulge in much development work. Colonial ethnographers refer to them as “a hill tribe living alongside the Nishi in the mountain ranges north of the Brahmaputra”.[3]
The Aka have similar traditions and are governed by the customary laws of Dimasa and Garo, but the Schedule does not apply to them. The recognition of their customs under Article 371A of the Constitution has resulted in an open interpretation favouring only men.[4] This is because the Article favours the application of customary law which has changed its shape to suit modernisation. Even though one third of the Panchayat comprises women, their powers are confined within the four walls of the Panchayat Samiti.[5] Hence, even though the Aka women are members of the Panchayat, their status in the society remains to be undervalued.
The modernisation and state intervention has promulgated private ownership of property in the absence of which the state controls the community resources.[6] The application of ownership laws where the state gained control of lands without a title transferred the control of these properties to male elite.[7] The women were further subjugated by not getting employed even though two thirds of the women were graduate and post-graduate degree holders in the families. However, only 22.16% of them had salaried jobs.[8] This resulted in the concentration of these resources in the hands of the elite, favouring patriarchy and class categorisation.[9] Following this change, the women who once controlled the family economy and management lost their status.[10]
Story of the North-Eastern Tribes
The model described above was effectuated by providing loans and subsidies for agriculture to individual landowning family heads, supposedly men. Hence, the community ownership was converted into the ‘Patta system’.[11] The Patta System has been recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The official land deeds are referred to as ‘pattas’ and are allotted to eligible candidates by State government officials post review and verification. The pattas grant the individual and community forest rights.
In matrilineal regions like Garo, where rubber plantations were subsidised for patta systems, the women lost their political and social control, even though they had some property.[12] The National Commission for Women (‘N.C.W.) report explains the degrading the economic status of women by referring to the 2001 Angami samples, which display how state intervention led to a decrease in women holding salaried jobs even though two-thirds of women were graduates/post-graduates.[13] Because modernisation favoured a family where men were more educated than women, it led to most Naga women being unmarried.[14] Restricting women to household work has been rigidified by public sector jobs and prevailing discrimination.[15] Further, referring to the man in the family as ‘nokma’ has transferred the control of land from women to men.[16] Hence, even though women inherit property, the ‘nokma’ controls it.[17] Therefore, bolstering the concept of individual property has degraded the socio-political control of women in their families and society.[18]
A similar change has been observed in Khasi and Jaintia tribes. The youngest daughter is considered the heiress and is referred to as “Khadduh”, who is considered the custodian of religion and property.[19] However, even though she has managerial responsibilities, men are the inheritors of the property.[20] Therefore, she cannot transfer the property rights without the consent of male members of her family. Further, the difference between clan and acquired property alienates women from achieving a means for individual subsistence. Most women do not inherit immovable property as men control the clan properties. Therefore, women end up inheriting jewels, utensils and the likes and cannot inherit livestock as it is a major source of economic support.[21] This has deprived women of socio-economic independence.
Most tribes revere the status of Naga women as women with freedom, equality and property rights.[22] The women have the freedom to choose life partners as the community promotes consensual relationships. However, there are instances when the laws which govern them do not treat them as equals. Such as, women cannot leave husbands without a valid reason, and if so, he is free to marry again after some time. However, if women do so, they are reported to the village council. Husbands are entitled to get ornaments from the woman’s father if she leaves him, but wives aren’t entitled to the same if the husband leaves. Various such unequal laws have shifted the power status of the Naga women by taking away their property rights. Women are not allowed to inherit immovable property, but the fathers can gift it to them. However, upon her death, it is transferred to male heirs. Women cannot even inherit their husband’s property, and due to this discrimination, their economic status remains impoverished. Therefore, even though women can buy their own lands, most are deprived of the economic means by the imposition of patriarchal and patrilineal laws. The N.C.W. report shows how these laws have further created a bias in the minds of the families that as women have to shift to the husband’s home after marriage and cannot retain the property, they are hesitant in transferring property to them. However, they are comfortable in transferring property to unmarried women.[23] Therefore, if women want economic independence, they have to surrender their dreams of kinship.
Negative Judicial Intervention
The N.C.W. report details how there is further depression in matriliny due to the apprehensions of families in sending educated women for salaried jobs[24] or imparting young girls’ education.[25] The restriction of women as betel growers, caretakers and familial managers has taken away their individual existence. Further, women’s alienation from property has also been witnessed in judicial pronouncements, that have also not been able to uphold gender parity. In Madhu Kishwar v State of Bihar,[26] it was contended that some provisions of the Chota Nagpur Tenancy Act were discriminatory against women and violated their right to equality, entitling only males to inherit property. However, the Court stated that agricultural families are identified from their male heads, and women are dependent on them for their livelihood. Hence, the female relatives of the last male tenant can hold the land as long as they remain dependent on such land for livelihood. This judgment showcases the Victorian morality imposed on women by taking their existence out of their historical context. Government initiatives further alienate women from having access to modern markets and procuring input devices for agricultural development, alienating them by depriving them of upliftment opportunities.
Similarly, in Ramdev Ram v Dhani Ram,[27] the women were disallowed from inheriting property due to the customary laws. Instead of contextualising the situation of women and providing a means of livelihood, the Court ruled that she cannot inherit property because she had married her husband after 3-4 years of her father’s death. These case laws are contrary to cases like Smt. Kajal Rani Noatia v Sri Raybahadur Tripura,[28] where the Court stated that all women from tribal areas in Tripura are entitled to inherit property equally as the male heirs.
Further, the case of Malabar women describes how the colonial courts converted the matrilineal ‘taravad’ (matrilineal joint family) into a patrilineal one. The women in these families had a right to branch off and institute separate households. They had a right to separate revenue, the right to marry according to their own will and self-acquisition of assets. However, the colonial courts decentralised the family ‘taravad’ and instituted the ‘karnavan’ as the male head of the family. Women earlier held this position; however, by allocating it a universally male pronoun, they changed the dynamics of the family.[29] By 1870, the High Courts had decreed that only a man could possess the authority to manage social and material relationships within the taravad.[30] Post this change, the rights of individual subsistence, right to property and marrying consensually were taken away. Arunima argues that the colonial courts imposed Victorian morality without acknowledging the diversity in law to ease administrative control over land and families.[31]
Conclusion
The N.C.W. report enlists multiple solutions for the upliftment of women. Some of them recognise the independence of these tribal cultures, non-intervention of outsiders and foreign influence. It is essential to revert to community ownership of resources and repeal the administrative and legal frameworks which promote gender disparity and leave certain genders devoid of opportunities. This can be done by emphasising the positive aspects of the Sixth Schedule, the 73rd Amendment Act and PESA Act 1996. However, one needs to factor in that isolation caused by non-intervention of foreigners could result in a decrease in the opportunities for monetary gain. This might further curtail women’s access to positive aspects of modernisation and reinforce the patriarchal customary laws within the communities. Reverting to community ownership and repealing foreign legal frameworks would be a gradual process, which could again reinforce the inherent subjugation of women. Hence, upholding gender parity could be practiced by flexibly legislating on access to opportunities and regarding women’s ownership as an important facet of society. Further, incentivising educational opportunities and making education gender inclusive could also increase the number of educated people, while changing their beliefs at the grass-root level.
The author, Varda Saxena, is an undergraduate law student at the Jindal Global Law School (JGLS), Sonipat.
[1] Ajeet Kumar Pankaj, Tribes in India, Department of Social Work Indira Gandhi National Tribal University Regional Campus Manipur, 7, http://www.igntu.ac.in/eContent/IGNTU-eContent-590220362838-MSW-2-AjeetKumarPankaj-TribesinIndia-1,2.pdf.
[2] Anthony S. Wohl., The Victorian Family: Structure and Stresses (Croom Helm: London 1978).
[3] D’Souza, Vijay, Pariyo Nimasow, Apang Rumo and Ramda Gidusow, Ako No Kako. Palizi, : Arunachal Jesuit Society (2005).
[4] Dolly Kikon, Political Mobilization of Women in Nagaland: A Sociological Background, in Walter Fernandes and Sanjay Barbora, OP. CIT. 176 (2002).
[5] Zenab Banu, Tribal Women: Empowerment and Gender Issues, 145 (Kanishka Publishers, 2001).
[6] Mann, Michael (ed). 1987. Macmillan Student Encyclopedia of Sociology. London and Basingstoke: Macmillan & Co 307.
[7] Walter Fernandes and Sanjay Barbora, Modernisation and Women’s Status in North Eastern India: A Comparative Study of Six Tribes 103-105 (2002).
[8] Id. at 109.
[9] Id. at 103-105.
[10] Geeta Menon, 1995, The Impact of Migration on the Work and Tribal Women’s Status, in Women and Seasonal Labour Migration 101 (1995).
[11] Forest Rights Act, 2006: Distributing land deeds to tribal people in Tripura in Social Sector Service Delivery: Good Practices Resource Book, 223 (2015), http://164.100.94.191/niti/writereaddata/files/bestpractices/Forest%20Rights%20Act%2C%202006%20Distributing%20land%20deeds%20to%20tribal%20people%20in%20Tripura.pdf.
[12] Caroline Marak, Status of Women in Garo Culture, in Soumen Sen (ed). OP. CIT. 60-69 (1997).
[13] National Commission for Women Report, Tribal Customary Law and Women’s Status, 55-57, available at http://ncwapps.nic.in/pdfreports/Customary%20Law.pdf.
[14] Id. at 4.
[15] Id. at 69.
[16] K. R. Marak, Tradition and Modernity in a Matrilineal Tribal Society, 60-69 (InterIndia Publications, 1997).
[17] Supra 15.
[18] P. C. Kar, The Garos in Transition 254 (1982).
[19] Juanita War, Status of Women in Traditional Khasi Culture in Women in Meghalaya, 12-16 (Delhi Publishing House, 1992).
[20] Supra 18, at 34.
[21] Id. at 57.
[22] Christoph Von Furer Haimendorf, The Naked Nagas. Guwahati and Delhi, 101 (Spectrum Publications, 2004).
[23] Supra 18, at 171-173.
[24] Id. at 67-75.
[25] Id. at 81-83.
[26] Madhu Kishwar & Ors v.s State Of Bihar & Ors, 1996 AIR 1864.
[27] SA No. 298 of 2002.
[28] RSA No. 38 of 2009.
[29] Edathil Itti v. Kopashan Nayar, S.A. 380 of 1862, 1 MHCR, 122-3.
[30] Arunima G., A Vindication of the Rights of Women: Families and Legal Change in Nineteenth-century Malabar, in Changing Concepts of Rights and Justice in South Asia, 125 (1998).
[31] Id. at 120.
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