Is Land Just for Men?

“Is Land Just for Men? Critiquing Discriminatory Laws, Regulations and Administrative Practices relating to Land and Property Rights of Women in Sri Lanka”, edited by Kishali Pinto-Jayawardena and Jayantha de Almeida Guneratne, published by the Law & Society Trust, 2010

by Bina Agarwal

(February 24, Colombo, Sri Lanka Guardian) In the late 1980s, when I was working on my book A Field of One’s Own (1994), I was struck by the dramatic difference between Sri Lanka and the rest of South Asia in the rights women enjoyed in immovable property, especially land.

That the Sinhalese Buddhists, the Hindu Tamils and the Muslims all recognised women’s property rights, highlighted the fact that it was local culture and tradition rather than religion per se which underlined those rights. Sri Lankan Hindu women, for instance, had much more in common on this count with their Sinhalese or Muslim counterparts in Sri Lanka, than they had with their Hindu counterparts elsewhere in South Asia. This could also be argued to some extent from Kerala’s experience in India, in that here too, in matrilineal communities, both Hindu and Muslim women enjoyed strong rights in landed property. But the forms of property holding and transfer in Kerala was then different from that of Sri Lanka’s matrilineal Muslims in the Eastern Province, although today we see a convergence (a point to which I will return). Also, the Kerala case, in itself, would have provided somewhat limited grounds to extend the argument of cultural commonality over religious difference in defining women’s rights in land. The argument was considerably strengthened by the much more substantial evidence of this from Sri Lanka.

Sri Lanka is also unusual on at least three other counts. First, its “personal laws” do not draw upon religion but on customary practices. For instance, the Tesawalami bilateral inheritance system followed by the Jaffna Tamils differs substantially from the Mitakshara and Dayabhaga systems based on the Dharamashastras which shaped Hindu inheritance laws in India. Similarly the personal laws of the Sinhalese vary according to customary practices, depending on whether a person is based in the Kandyan provinces, or elsewhere. Second, unlike most of South Asia, Sri Lanka has a General Law for the Sinhalese which coexists with their personal laws, providing them a secular alternative if they marry under the General Law. (In India, the Indian Succession Act of 1925 provides a similar alternative, but only for inter-faith marriages performed as civil marriages under the Special Marriage Act of 1954.) Third, the fluidity of post-marital residence in a Sinhalese woman’s lifetime between the binna and diga systems (in the former the husband joins his wife in her natal home and in the latter she moves to her husband’s village and home), and the associated fluidity in the inheritance rights of daughters found under traditional Sinhalese law, was a most unusual practice. And it carried to the logical conclusion the link of inheritance rights with a married daughter’s geographic proximity and availability to care for her parents.

Hence although this book is provocatively titled “Is Land Just for Men?” in practice Sri Lanka’s centuries-old customs have also granted women substantial rights in land. The context of this book, therefore, is not one where women have no rights in land, or where the legitimacy of their rights is deeply contested. Rather, the context is one where there remain gender inequalities in those rights as defined in law, or as implemented in practice. And it is these inequalities that the book seeks to address and redress. And although the book is focused on state land transfers, rather than on customary systems or personal laws, these laws affect state land transfers both in terms of who is nominated to receive the land title within the family, and in subsequent inter-generational transfers of such land over time.

To make informed recommendations on this count, the research team carried out a survey of 160 households—Sinhalese, Tamil Hindus and Muslims—which had received state land across four provinces of Sri Lanka. The households were randomly selected from the lists of the Divisional Secretary offices in each province, and a male or a female respondent was interviewed in each household. Although the sample is too small for generalisations, the survey is still useful in providing pointers on many counts, including the incidence of land ownership by gender, the sources of the land owned (such as inheritance, purchase, gift, etc.), social attitudes to gender equality in land rights, land disputes, people’s awareness of laws and specific legal amendments, vulnerabilities linked with female headedness, and the impact of ethnic conflict or of natural disasters such as the Tsunami.

I was struck by several findings of the survey. One was the widely shared opinion across all the ethnic/religious groups that women and men should have equal rights over land. All the men and 95 percent of the women across the provinces shared this view. Although, in practice, there continues to be a male bias in the land sons and daughters receive via inheritance or in other ways in most provinces, the opinions expressed portend well for the legal amendments that Kishali Pinto-Jayawardena and Jayantha de Almeida Guneratne—the editors of this book who led the research initiative—are proposing, for ensuring full gender equality in law and administrative practices.

The survey results for Muslims in the Eastern Province are also striking. It is observed that here land is given as dowry to the daughter upon marriage, while men “accept this custom and seek marriage with women who receive land as dowry, thus foregoing their own right to inherit from their own families”. Although the book does not highlight this, female inheritance among the Muslims of the Eastern Province has matrilineal roots, as I had elaborated in A Field of One’s Own on the basis of Sri Lankan ethnographies of the 1960s and 1970s. From the Survey done by the research team it is clear that the practice still survives, despite the formal adoption of Islamic law for Muslims in Sri Lanka. It is also striking that the current practice among the Muslims of the Eastern Province is almost identical to that found among Kerala’s matrilineal communities. For instance, in a survey that a colleague and I undertook in Kerala in 2004-05, we found that daughters were often given the ancestral home or land as dowry at the time of marriage, while their brothers tended to forego their shares. An access to immovable property from their parents also provided women substantial protection against domestic violence, and our results held after statistically controlling for a wide range of other factors which could also impinge on women’s risk of spousal violence. Reform of such matrilineal customs in a gender-equal direction, or toward Islamic law, may thus be less to women’s benefit, and legal advocacy needs to take this into account even for state land transfers.

The special vulnerabilities faced by female-headed households are also revealed by this book’s survey. The number of such households has been increasing due to ethnic conflict and natural disasters. This points to the need for specific policies, including rapid provisioning of secure land deeds to women whose families have lost land, or who are entitled to land compensation via a government programme. This can prove crucial in protecting vulnerable families from poverty or destitution.

The overall recommendation of the book that family nominations for state transfers of land should follow principles of equality is in the right direction, with all siblings, irrespective of gender or birth order, having equal inheritance claims. Concerns about land fragmentation, which are sometimes expressed in this regard, can be addressed through other policy mechanisms. For example, while all siblings may enjoy rights in the land, actual cultivation can still be done by the sibling who stays where the land is given, with the others getting a share of the harvest. This is what happens with privately inherited land as well. When I was travelling in the Kandyan Highlands in the mid-1980s, for instance, many village women told me that they had received some coconut trees in dowry, and their brothers would send them the coconut harvest. Although this had minor economic value, symbolically it was very important to the women for establishing their claims in the parental home even after marriage. In other words, even if ownership is spread among several claimants, the cultivated unit can remain consolidated.

There can be other ways too by which the government could transfer land in an egalitarian way, without the risk of fragmentation. It could, for instance, transfer a land title to a group of siblings, to be held by them jointly in a kind of land trust, rather than to an individual. Another model could be to transfer a larger piece of land to a group of families, which they could hold in common and cultivate as a group, rather than as separate households. As I have elaborated in a recent paper on “Rethinking Collectivities”, there are many potential advantages of group farming.1 Compared with individual family farming, a group would be better placed to invest in irrigation and soil conservation measures; pool labour and skills; benefit from economies of scale; afford crop insurance; share the risks involved in cultivating higher value crops; have greater access to institutions for agricultural inputs and credit; and obtain better returns in marketing. The groups would of course have to be formed voluntarily, and be of relatively small size, participative in decision-making, and egalitarian in distribution, with assured mechanisms to prevent free riding. That this is feasible in practice is illustrated by several success stories of women farming jointly in small groups in South India and Bangladesh. These kinds of groups are in sharp contrast to the early socialist collectives which were formed top-down and coercively, were massive in scale, and had rather disastrous social consequences. Perhaps these ideas, involving various forms of group titling and joint cultivation, could be explored by the authors with Sri Lankan policy makers.

The book also opens the door for further research on several aspects. It highlights the need for comprehensive cross-country gender-disaggregated data on land and house ownership. Although some of Sri Lanka’s agricultural censuses do collect gender-disaggregated land ownership and use data, the data I saw in the 1982 agricultural census was limited to agricultural operators and did not cover all rural households. Also the published data did not give a gender-wise breakdown of land ownership, even among agricultural operators. A comprehensive survey of all land owners by gender would go a long way to providing a national profile and help monitor changes over time as well. Moreover, there are interesting questions that arise on the potential tensions between the General Law and personal laws; and between customary practices which favour women, such as among Muslims in the Eastern Province, and personal laws such as Islamic law. And there is scope for further examining the links between women’s ownership of immovable property and protection against domestic violence on the basis of a statistically rigorous analysis which controls for the effect of other factors.

In all, this book is an excellent example of how social science insights can provide significant inputs for legal reform. Rich in detail and strong in recommendations, I am sure it will prove to be a very valuable resource for scholars and practitioners.

(The writer, Director and Professor of Economics, Institute of Economic Growth, Delhi, India and author of A Field of One’s Own: Gender and Land Rights in South Asia )