Economic Rights of Half-Widows in Kashmir

Every time that one speaks of Kashmir, the plethora of subject matters that are discussed, broadly fall in the realm of politics, history, religion, violence and human rights violations. However, in discussing these grave issues, one must not lose sight of the profuse consequences that arise out of these central issues. One such consequence is the denial of access to rightful ownership of property to the heirs of a victim of enforced disappearance, especially the denial of rights to 'half-widows'.

'Half-widows' in not a legally recognized term but is coined by the general society to refer to a married woman in Kashmir whose husband's whereabouts are unknown (the husband in these cases are victims of enforced disappearance). The husbands of these women are in most instances picked up by unidentified army men on the suspicion of being a militant. Their whereabouts remain unknown as the officials decline to disclose any information about them.  The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 allow for such arrests to be made by officials.[1]It reads:

"Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-

(c) arrest, without warrant, any persons who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest"

Ideally, once a person is arrested, it is necessary for the arresting authority to inform his/her family about the arrest and the charges brought against the accused. However, due to the imposition of Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, this crucial information is not delivered to the family. Since Section 4(c) of AFSPA gives the power to arrest, along with no obligation on the officials to release any information to the family; there is no procedure on the basis of which an arrested person's family can trace him back and enquire about his whereabouts. Thus, the law on this issue remains vague. Due to the persistence of this ambiguity, it has been a trend on part of the officials to not disclose the whereabouts on the suspicion of these men being militants.

The Association of Parents of Disappeared Persons (organization formed by the relatives of disappeared people) estimate that 8,000 to 10,000 men have disappeared since 1989 (as opposed to the govt. statistics which estimate 4,000 men to be missing). This leaves an estimate of 2,000 to 2,500 half-widows and around 6000 orphans in Kashmir.[2]The case of village Dardpora is quite peculiar. Situated deep in the conflicted zone, the village is home to 150 half-widows.[3]

It is important to note that the list of victims of enforced disappearance is not limited to the people who are just picked up by unidentified army men.The number of victims increases drastically when we take into account the family members of the disappeared people who in most instances spend their lives waiting for their loved ones to return. The family members become victims of this vicious circle since they undergo deep unresolved grief and anguish, which eventually transforms into a baggage that they carry for life. Research indicates that such a suffering results into the family members becoming patients of post traumatic stress disorder and other major depressive disorders.[4] A wish for their loved ones to return seems like a far cry, when the officials decline to reveal whether these men are even dead or alive. However, the problems of the half widows do not end with their emotional and psychological affliction.They also have to bear upon the financial difficulties of making a living for themselves and their children.

When a Hindu male dies 'intestate'[5] in Kashmir his property is devolved in accordance to the Jammu and Kashmir Succession Act, 1956. According to this statute, when a Hindu male dies, his property should be divided amongst his hires in accordance to the rules and orders of succession provided in Chapter II of the Jammu and Kashmir Succession Act, 1956. However, none of these provisions recognize "half-widows" as legal heirs of their husband's property. Thus, there is no remedy provided in the Jammu and Kashmir Succession Act, 1956 for the half-widows to claim their husband's property.

Since these women do not have a remedy in the Succession statute, the best way for them to rightfully claim their husband's property is for them to prove that the 'marriage is dissolved'on the basis that their husband is 'presumed to be dead by law'. Section 13(1)(ix) of the Jammu and Kashmir Hindu Marriage Act 1980, provides that if a person "has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive"

Furthermore, Section 108 of the Evidence Act 1977 (applicable only in Jammu and Kashmir) provides that "Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it". Accordingly, a half-widow can avail her rights to her husband's property if she successfully proves that he has not been heard of for seven years. However,proving this is a task of extreme difficulty, which most women are not ready to take up. For multiple reasons, these instances are filled with anxiety and stress. Firstly, the half-widows have to wait for a span of seven years in order to claim ownership of the property. They are then required to prove that she has waited for a period of seven years (proof can me made by first filing an FIR). Additionally they have to prove that the victim (their husband) was never involved in militant activities of any sort[6]. Only then, would the government officials consider their claim valid.

Further, there are several additional difficulties that the half-widows face with regards to this particular issue. Firstly, the period of 7 years commences only when a missing report has been filed for the same in order to prove that the spouse has attempted to find her husband. It is important to recognize that (i) this requirement is often not known by the population who aren't well versed with the law (furthermore, statistics shows that the majority literacy level is exceptionally low[7]), (ii) there is often significant resistance from the state machinery to register such FIRs, especially if they have an incentive to report fewer deaths/disappeared/missing persons, (iii) there may even be obstacles in reaching the police station to file the FIR, e.g. not just distance,family commitments, access to transport, etc., but in the case of Kashmir,  road blocks and check points as well.

As far as the Islamic law regarding the devolution of property is considered in Kashmir, there is an Islamic declaration made, which provides that a half-widow will be considered a 'widow' after four years of the husband's disappearance.[8] By virtue of this provision, after four years of disappearance, the half-widow acquires her right to remarry and claim the property share from the husband's property.[9] However, it is suggested that this declaration is not being followed in practice and that the in-laws of half-widows continue to deny them a share of their husband's property.[10]It is a general observation made that the half-widows are denied the right to their husband's property on the ground that the expense of marriage was done from the claimant's share in the husband's property and thus, her claim had already ceased. Prominent religious scholars such as Ghulam Rasool Hami also notes that the denial of share in property to women in general is a grave situation that needs attention and requires a solution.[11]

What strikes the consciousness most is the failure of the government machinery to provide a solution to an issue as prominent as this. But, it is quite understandable as to why the government wouldn't render a solution to the economic rights of half-widows. After all, in order to recognize the rights of these women, the State will first have to recognize the status of a 'half-widow' which acquires its meaning from a direct consequence of the State's action of perpetrating enforced disappearance. In the realist world, that all the idealists are forced into, the State wouldn't ever hold itself responsible for the acts of enforced disappearance that it perpetrates on such a wide scale.

The right to property is not one single right, but a bundle of rights[12] the value and importance of which stand undisputable. Property has been a subject of importance since time immemorial. As early as in 1651, Thomas Hobbs in his political theory coined the 'Social Contract Theory' which in layman's terms is the contract between the State and its citizens wherein the former contracts to protect the life, liberty and property of the latter in exchange of the latter's legitimacy towards the authority of the State. If this is the case, then what happens to this social contract when the State fails to deliver the access to property and property rights to its citizens?

It is important to reflect upon what happens to this precious subject in a state of conflict. A conflict that sees no end in days and months and has persisted and pierced the lives of many for several years now. In a conflict of such a nature, the 'bundle of rights'[13] is not delivered, and we reach a state where a rightful property owner fails to enjoy the rights and benefits that he/she has over the property. Such is the case in Kashmir.

Whenever there is an issue of a border dispute in Kashmir, the Indian government and its machinery never fails to remind the people of Kashmir that their territory belongs to the Indian State. However, every time that the people of Kashmir look up to the India State and its machinery to govern the rights that rightfully and legally belong to them, the State without hesitating, turns a deaf ear to their pleas until the voices of people cannot be heard over the sound of bullets.

Half-widows could have been called half-wives too, but they aren't, I wonder if that's because in these situations the sense of loss always supersedes the faith of their husbands ever returning. Struggling in a life of limbo where psychological, societal and emotional cards are at play, the financial helplessness is an additional burden carried by these women. Amidst the socially perceived bigger battles that Kashmir has to fight, these crucial wars of financial needs, property rights and making ends meet on an everyday basis, just looses its sight.

Alisha Mehta is a fourth year law student of Jindal Global Law School. 

Image: Association of Parents of Disappeared Persons 

[1]Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, Section 4 (c).

[2]SindhujaParthasarathy, The Plight of Kashmir's Half-Widows and Widows, The Wire, June 2016. Available at: https://thewire.in/46426/the-plight-of-kashmirs-half-widows-and-widows/ ;Aliya Bashir, Kashmir's half-widows shoulder the burden of a double tragedy, The Guardian, October 2010. Available at: https://www.theguardian.com/global-development/2010/oct/11/1

[3]https://spark.adobe.com/page/wU8Be/

[4]SindhujaParthasarathy, The Plight of Kashmir's Half-Widows and Widows, The Wire, June 2016. Available at: https://thewire.in/46426/the-plight-of-kashmirs-half-widows-and-widows/

[5] The Jammu and Kashmir Hindu Succession Act 1956, Section 3(1)(f) provides that – a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect.

[6]SindhujaParthasarathy, The Plight of Kashmir's Half-Widows and Widows, The Wire, June 2016. Available at: https://thewire.in/46426/the-plight-of-kashmirs-half-widows-and-widows/; https://www.theguardian.com/global-development/2010/oct/11/1

[7]Aliya Bashir, Kashmir's half-widows shoulder the burden of a double tragedy, The Guardian, October 2010. Available at: https://www.theguardian.com/global-development/2010/oct/11/1

[8] https://www.kmsnews.org/archives/ulemas-fatwa-over-half-widows-re-marriage-in-iok-welcomed/ ;http://isis.or.ug/tackling-the-remarriage-of-half-widows-in-kashmir/IqbalKirmani, Why are half-widows in Kashmir being denied share in husband's property?, DNA on Kashmir, November 2015. Available at:  http://www.dnaindia.com/locality/srinagar/why-are-half-widows-kashmir-being-denied-share-husbands-property-75504; SindhujaParthasarathy, The Plight of Kashmir's Half-Widows and Widows, The Wire, June 2016. Available at:  https://thewire.in/46426/the-plight-of-kashmirs-half-widows-and-widows/

[9]IqbalKirmani, Why are half-widows in Kashmir being denied share in husband's property?, DNA on Kashmir, November 2015. Available at:  http://www.dnaindia.com/locality/srinagar/why-are-half-widows-kashmir-being-denied-share-husbands-property-75504

[10]IqbalKirmani, Why are half-widows in Kashmir being denied share in husband's property?, DNA on Kashmir, November 2015. Available at:  http://www.dnaindia.com/locality/srinagar/why-are-half-widows-kashmir-being-denied-share-husbands-property-75504

[11]IqbalKirmani, Why are half-widows in Kashmir being denied share in husband's property?, DNA on Kashmir, November 2015. Available at:  http://www.dnaindia.com/locality/srinagar/why-are-half-widows-kashmir-being-denied-share-husbands-property-75504

[12] R. C. Cooper v. Union of India, AIR 1970 SC 564.

[13] R. C. Cooper v. Union of India, AIR 1970 SC 564.