The Voiceless Millions of Widows in India
Focus On the Rights of Widows within the CEDAW Framework
Presented by: The Guild of
Written by: Meera Khanna, Vice
The Guild of Service
Widowhood is both a crisis and a problem. In the suddenness and in the sea change that it wroughts in the life of a woman, it is a crisis. As the woman tries to cope with the implications it becomes a problem. The implications are almost always economic.
According to 2001 census 6.9% of
Every fourth household in
Ø 45 million women are widows. The numbers are only increasing due to armed conflicts, natural disasters, communal riots and the traditional marriage patterns.
Ø Only 28% of widows are eligible for pension; only 11% actually receive it.
Ø 40 million widows are without pension
In India, as in many parts of South Asia widowhood is viewed not as a period in the life cycle of a woman, but as a personal and social aberration, to be devoutly wished away. This attitude to a great extent governs the social, cultural and even economic implications of widowhood. In the Indian psyche, there is acceptance of the inevitability of death, but the natural inevitability of the death of a spouse (husband) is often glossed over. This inherent contradiction motivates the cultural non-acceptance of widowhood. In a society totally governed for centuries by patriarchy, discrimination on the basis of sex exists in almost every political, economic social and legal institution. In such a situation the Indian widow is triply discriminated against, as a woman, as a widow and as a poor widowed woman.
The principle of equality and non discrimination which
reflects the spirit of CEDAW is really the touchstone of the Indian
Constitution. Article 14 of the Constitution of India states that: “The State
shall not deny to any person equality before the law or the equal protection of
the laws within the
Obligations breached by State Parties with specific reference to widowhood
Article 2 b: To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women.
Move towards non discrimination
Ownership/control of assets, namely property is the greatest protection for widows from deprivation and the consequent discrimination. Even though the property rights of Indian women have grown better with advance of time, they are far from totally equal and fair. There is much that remains in Indian women’s property rights that can be struck down as unconstitutional and certainly not in keeping with the spirit of “Non discrimination” As a wife the woman is maintained by her husband, but as a widow she is left totally at the mercy of a patriarchal family or a maze of confusing laws which she neither understands nor can take advantage of. Compounding the misery is the fact that the laws are skewed against her assertion of right as a widow.
· Traditionally a woman in a joint Hindu family, had a right to sustenance, but the control and ownership of property did not vest in her. In a patrilineal system, a woman, was not given a birth right in the family property like a son.
· By the Acts of 1937, 1956 daughters and widows can inherit the self acquired property and the husband’s share in the joint family property as Class I heirs after son, daughter.
· Further the Amendments to the Hindu Succession Act in 2005 bring male and female rights in agricultural land on par for all states, overriding any inconsistent state laws. This can potentially benefit millions of women dependent on agriculture for survival.
· The 2005 act makes all daughters, including married ones, coparceners in joint family property with the same birthrights as sons to shares and to seek partition .The 1956 Hindu Succession Act had distinguished between separate property and joint family property.
· The 2005 amendments give all daughters (including those married) the same rights as sons to reside in or seek partition of the parental dwelling house.
· The legislation removes a discriminatory section which barred certain widows from inheriting the deceased's property, if they had remarried.
Gaps that emphasize discrimination
By the amendments, daughters will now get a share equal to that of sons at the time of the notional partition, just before the death of the father, and an equal share of the father's separate share. However, the position of the widow vis-à-vis the coparcenary stays the same
· The amendments do not curtail the right of any heir to claim partition of a dwelling house till the settlement of widowed mother’s rights in case the deceased male is intestate. This is further example of the insensitivity of the law makers to the plight of widows. On the death of a man, the heirs immediately clamor for partition of the property including the dwelling house. In such a situation the widow is often left homeless, or dependent on the son. Even though by the law of the land she can claim maintenance from her children, in actuality, she prefers to suffer in silence since she had neither the money nor the knowledge or the support to get into a legal wrangle
· The Christian widow’s right is not an exclusive right and gets curtailed as the other heirs step in. Only if the intestate has left none who are of kindred to him, the whole of his property would belong to his widow. Where the intestate has left a widow and any lineal descendants, one third of his property devolves to his widow and the remaining two thirds go to his lineal descendants. If he has left no lineal descendents but has left persons who are kindred to him, one half of his property devolves to his widow and the remaining half goes to those who are of kindred to him.
· In Islam the share of the wife is one-quarter in the absence of a child or agnatic grandchild and one-eighth in the presence of a child or agnatic grandchild. Two or more wives share equally in this prescribed share. Sharia has placed two restrictions on the testator. Firstly, to whom he can bequeath his estate and secondly, the amount that he can bequeath. The majority view is that a bequest in excess of one-third of the net estate is invalid unless consented to by the legal heirs as is a bequest in favour of a legal heir.
Despite the rather egalitarian law of inheritance as stipulated by the
Sharia, the condition of widows in predominantly Muslim countries like
Article 2c: To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination
Cultural discrimination of tribal widows
Between 1987 and 2003, 2556 women were killed after being branded as
witches. Witch hunting has been reported
in many states of North and Central India and in
is very depressing that in
There is a specific law “the prevention of witch practices Act (2001) but this ordinance also comes with a package of drawbacks as the punishment for witch killing is nominal. According to the sections 3, 4, 5 & 6 of the Act, a person who identifies witches can be punished with imprisonment for a term which may extend 3 months or with fine of Rs. 1000. Any person who commits such heinous crime would be punished merely with imprisonment for 6 month or with fine of Rs. 2000 or both. The law has failed to make any impact on culprits as it is seldom practiced and conviction rate for crimes related to witch hunting is as low as 2%.
It is very evident that there is very little effective legislation on a crime that is only rising with the paucity of available tribal lands. The enforcement machinery is inept to convict a complete family, or a village that abets and aids witch hunting. The rather sanguine approach of the Government under pins the discrimination that happens to tribal widows.
Article 2 f.To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.
Absence of a Uniform Civil Code
Due to the geo-political
nature of the country, various cultures and religions flourished in the country
and as a result, we have various personal laws in place. Women have equality of status under the country's
Constitution. However, many anomalies remain under different personal laws.
Despite the Hindus Succession Act and its Amendments, widows do not have the
same right as the sons. This is in keeping with the principles of patriarchy.
Similarly the Christian widow is discriminated against in inheriting the
husband’s property and it is always less than the lineal heir. Unless
specifically mentioned in the will the heirs can ask for partitioning of
property including the dwelling house thus dispossessing the widow of a roof
over her head. Personal laws that govern
many minorities in
Despite The Supreme Court having talked time and again about having a uniform civil code as per Article 44 of the Constitution of India the government has been singularly reluctant to address the issues of minority women's rights. The efforts to conceptualize a common civil code have been largely unsuccessful since there have been attempts to impose Hindu law in the name of a Uniform Code and to ignore even the positive aspects of Personal Laws of other communities. There are various ambiguities within the Hindu laws itself. Therefore, there is a real need to evaluate and revaluate the Hindu code itself along with the Christian and Muslim personal laws so that they are in consonance with the constitution and other codified laws like IPC, Cr.P.C. etc. Whenever there is a talk of formulating a Uniform Civil Code in the country, some minority fundamentalist organizations come together protesting that it poses a threat to their religious identity
Despite the secular nature of
Article 5: States Parties shall take all appropriate measures:
To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women
Very often cultural patterns of conduct, are at variance with the human rights culture and the maintenance of the status quo patriarchal norms conflict with gender equality. Many of the practices defended in the name of culture that impinge on human rights are gender specific; they preserve patriarchy at the expense of women’s rights. In the context of widowhood forced marriage as child brides (resulting in early widowhood) paying to acquire husbands for daughters through the dowry (resulting in depriving widows of any share in the natal property) patriarchal inheritance systems in which daughters inherit less
than sons and the widows’ right to property is at variance with customary law, marriage arrangements allowing the husband control over land, finances, (leaving the widow with very little knowledge or resources to assert her right) witch-hunting; compulsory restrictive dress codes, diet code and behavior code that institutionalize the ostracism and discrimination of widows. The most harmful cultural practice is the stereotyping of widows that serves to underpin their victimized status.
To comprehend this there is the need to understand the
cultural customs of the dominant Hindu society in
From this emerges the pattern of ostracism of widows in
Skewed property laws, the inability to put a common law
regarding inheritance makes the Government responsible for the discrimination
that widow’s face in India Further the Government has no proactive strategy in
place for a change in the social mind sets either through legislation or
education.. It is horrifying to note that some religious leaders support the
retrogressive principles of widow discrimination. Media continues to stereotype
the Indian widow as emaciated victim at the mercy of her male relatives, thus
validating the already existing social ostracism. On the principle of “non
interference in individual culture” the Government of India turns a blind eye
to the prevalent customs and traditions of widow discrimination. There is the
need for a truly participative debate on the issue to educate, to inform and to
change prevailing mindsets. By adhering to the principle of non interference in
cultural norms, and by expressing reservations to Article 5a of the Convention,
the Government of India fails in its responsibility to uphold the human right
to a life of dignity for widows. The
Without a transformation of religious/cultural patriarchy by a decree of the constitutional system, women cannot gain full equality.
Article 16 2
The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.
The same logic, more or less, of non
interference in individual cultures has been extended to
The Indian government's stand is that in principle
it supports fully the compulsory registration of marriages, but to implement it
is not "practical in a vast country like
Despite a law stipulating child marriages, on the
day of Akha Teej, children as young as 5 are married off in the state f
Inadequate action by State Parties on the Obligations with specific reference to widowhood
Inadequate measures on the part of the Government, non implementation of policies, ineffective programs invariably affect the poor. Since poverty has a feminine face, women are most affected. In this category widows are the most vulnerable so consequently the South Asian Governments’ inadequate policies affect widows most. But there are certain inadequacies that deprive widows even more and these need to be highlighted.
Article 10 (e) The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particulary those aimed at reducing, at the earliest possible time, any gap in education existing between men and women
The literacy rate for women in
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.
Only 28 percent of the widows in
The success of the scheme in reality falls woefully short of expectations. Firstly the application forms are not easily available at the Panchayat offices or if they are, then the concerned officer gives it as a kind of favor. Secondly the forms are not user friendly. The widow is required to furnish proof of age, authentication by the prescribed authority etc. Foe the average illiterate widow, this is a Herculean task. Thirdly the forms are to be submitted at the taluk offices, which is difficult and often impossible for poor widows living far away. Follow up requires a couple of more visits. Fourthly verification of the forms is a lengthy process. Most widows do not have birth certificates to prove their age. Often the widow has to pay private doctors to get a certificate. This is an added expense. Fifthly there is a great deal of arbitrariness in the assessment whether a widow is truly destitute or not. For example if a widow has an adult son or grandson living then the application can be summarily rejected without taking into consideration the fact that the son may not be supporting her. Finally after all the effort the pension obtained is grossly inadequate. It is now Rs. 200 ie about 2 dollars a month.
The Government of India has to make a comprehensive and uniform pension schemes for widows. The procedure has to be made user friendly keeping ground realities in mind.
1. States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas. (No data available particulary on rural widows)
2. Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right
Plight of the rural widows:
According to the National Rural Employment Guarantee scheme introduced by the Government of India, one adult per BPL household is guaranteed 100 days of work. This immediately is skewed against the widows who are living in a household but not necessarily being supported by the male members. The assumption is that as a widow she is heading a household. This need not be correct. The widow could be living in her marital/natal home. In such a situation she is not liable to be allowed to avail the scheme. The widow like all rural, under privileged women is the victim of a corrupt system, the former more so by virtue of her vulnerability. All those who are eligible to work under the scheme have to register with the village panchayat (the lowest elected body). The panchayat will make enquiries verify and then will issue a job card. Knowing how male dominated panchayats treat the unorganized poor particularly the women, the widow is immediately at a disadvantage. Like many schemes of the Government the spirit is willing but the implementation is weak. This is a structural weakness which will have to be rectified. In the meanwhile widows continue to be on the lowest rung of the vulnerability scale.
than 20,000 farmers in
In 1998, the World Bank’s structural adjustment policies to which
The second pressure Indian farmers are facing is the dramatic fall in prices of farm produce as a result of the WTO’s free trade policies. The WTO rules for trade in agriculture are, in essence, rules for dumping. They have allowed wealthy countries to increase agribusiness subsidies while preventing other countries from protecting their farmers from artificially cheap imported produce.
The Government of
Inadequate data on widows
the deprivations of widows are well hidden in economic and social statistics. Since the poorest segment of a population is usually comprised of female-headed households, it is probable that households headed by widows face greater economic hardships than most. Regrettably, for most countries, the lack of income data desegregated by headship and marital status prevents the direct documentation of the economic vulnerability of widow-headed households. Without adequate data it will be impossible to underscore the economic, social and political vulnerabilities of widows.
Need for comprehensive reporting procedures that are transparent, and inclusive
1. States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect:
(a) Within one year after the entry into force for the State concerned;
(b) Thereafter at least every four years and further whenever the Committee so requests.
2. Reports may indicate factors and difficulties affecting the degree of fulfillment of obligations under the present Convention.
The present reporting procedure ensures that State Parties submit a detailed report on the progress made and adherence to the articles of the convention. Governments tend to focus on policies that exist on paper but gloss over ground realities. The NGO report focuses on grass root reality without amplifying the road blocks. A correct assessment would be a combination of both. Perhaps there is need to put a process in place by which Governments and civil society can give a holistic report. It seems like an ambitious plan. But the need of the hour is a verified and correct assessment to ensure that the articles of the Convention are adhered to. A correct assessment only can lead to the complete and actual realization of women’s equality and freedom from all forms of discrimination.
Meera Khanna is a free lance writer and social
activist. She has been voluntarily associated with the Guild of Service and looks
after the NGO’s interventions in the conflict affected state of
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