Feature: How Kashmir’s half-widows are denied their basic property rights

Safina Nabi

Thirty winters have passed since Atiqa Begum, 59, last held her husband’s hand. Married at the young age of 19, Atiqa spent the next eight years of her life happily with her husband, who worked as a contractual employee in Kashmir’s power development department.

The couple lived in Zogiyar village in Baramulla district with their four children. The youngest was four months old when a knock on their front door on a cold February night in 1990 changed the course of their life.

“We were woken up by loud banging on our front door that night,” Atiqa recalled. “Terrified, I held my husband’s arm tightly with one hand and my youngest daughter with another. My husband assured me that nothing would happen and went out to check the door. But he never returned.”

In 1989, an armed struggle for liberation from the Indian state took shape in Kashmir – with it came a heavy presence of the Indian military. Kashmiris’ lives were thrown in a vortex of conflict, killings and disappearances. While many families accused Indian security forces of taking away innocent civilians, the government claimed that most of the men who went missing went away voluntarily, to join militancy.

Atiqa, however, distinctly recalls watching a group of men forcibly take her husband away. “Though their faces were covered with black masks and one could see nothing but their eyes, I remember that they were all wearing army uniforms,” she said.

Despite the best efforts of her father and extended family members, Atiqa, then 27 years old, could find no trace of her husband. Multiple trips to law enforcement agencies bore no results. The family looked for him in military camps and prisons within and outside Kashmir, but received no information. “My father passed away with this grief in his heart that he was not able to find my husband and bring him back home to me,” she said.

The absence of a husband weighs heavily on women in traditional and patriarchal societies such as Kashmir’s. With no separate source of income for herself or her children, Atiqa was left at the mercy of her in-laws.

Much to her indignation, Atiqa’s in-laws suggested she marry her husband’s younger brother. “Another marriage would have brought in more responsibilities and there would have been expectations of more children,” she said. “I was also thinking, if my husband actually came back one day, then what would happen.”

She added, “I had four children and the youngest was just four months old. The future of my children was more important than mine. I could not take such a drastic decision.”

Her in-laws accepted her decision and also assured her that she would be given her husband’s share in the family property. However, things changed after her father-in-law, who was sympathetic towards her, passed away in 2015.

“After the demise of his father, my brother-in-law distributed the family property among all siblings, including his sisters,” she said. “He did not give my children my husband’s share, citing a twisted interpretation of Islamic laws of inheritance.”

Atiqa now lives in Zogiyar with her oldest son, who is married and has a daughter of his own – her younger son and younger daughter, who are unmarried, also live with them.

Her children have had to struggle to build their lives. When her husband disappeared, their oldest son was eight years old. At first, Atiqa’s father managed the expenses of his education – but when Atiqa’s father died, her son had to cut his schooling short and take up work as a daily wager.

Over time, her younger children, too, had to leave school and train in tailoring and needlework so that they could contribute to household expenses.

In contrast, their cousins studied well and secured government employment. One of their cousins works in the district magistrate’s office, while the other one is a teacher.

“My children lived a miserable life,” Atiqa said. “They struggled and worked hard in the hope that the share from the property would ease our difficulties someday, but it feels like we were waiting for another misery to befall us.”

Atiqa’s family lives in a roughly constructed three-room single-storey house. Its makeshift tin roof is covered with a white plastic sheet, to keep water out.

As we were walking out after our conversation, she pointed towards a three-storey house some distance away, with white windows, and crimson red walls.

“That’s my brother-in-law’s house,” she said. “When I look at that house I feel that it is painted with my husband’s blood.”

Atiqa’s story mirrors the plight of countless women in Kashmir, whose husbands disappeared and could never be traced. Since the men were not declared dead, their wives spent decades waiting for them in uncertainty – Kashmiri media coined the term “half-widows” for them.

According to the Srinagar-based Association of Parents of Disappeared Persons, or APDP, more than 8,000 men disappeared in the region during the tumultuous period between the late 1980s and the early 2000s. The authorities in IIOJK have at different points declared widely varying figures for the number of disappeared men, ranging from 1,105 to 3,931.

Some believe that mass unidentified graves, which have been found spread across the region, may be linked to these enforced disappearances.

In 2011, noting that 2,730 unidentified bodies were buried in 38 sites across northern Kashmir, the human rights commission of IIOJK directed the authorities to investigate the mass graves. But in the decade since then, no larger probe has been conducted.

Local organisations like APDP, which have been fighting for justice for the families of disappeared people, believe that these graves may hold answers for many of Kashmir’s half-widows. While there are no official estimates of the number of half-widows, in 2011, the human rights group Jammu and Kashmir Coalition of Civil Societies pegged the number at around 1,500.

For women whose husbands disappeared, there has been no closure. The emotional pain of losing their husbands has been compounded by the economic hardship that came with the loss of the family’s sole earning member.

The ambiguity surrounding the men’s disappearance meant their wives were unable to access any government help. “We have to understand that there is no way for the wives to try and secure employment, as many state agencies often brand the disappeared men as alleged terrorists, leaving them with little options,” said Dr Samreen Hussain, a legal scholar who has worked on property rights of women in Islam.

But if the government has let them down, Kashmir’s patriarchal society has not been kind to the women either. The cruelest blow has often been dealt by their own families, who have cheated them of a rightful share in the family property.

Until the Indian government disallowed public gatherings in the aftermath of the abrogation of Jammu and Kashmir’s special status under Article 370 in August 2019, a group of families used to gather at Srinagar’s press club every month to voice their concerns about their disappeared loved ones.

Tahira Begum was a regular in this group.

Nearly twenty years have passed since Tahira, who is 45, last saw her husband. In 2002, her husband, a mason in Baramulla’s Uri village, went to work one day but never returned. He worked at the Uri power station, which was under the control of the Indian Army – and so she suspected that the army had taken him away.

Tahira said she “searched for him everywhere, including in army camps, jails, and even torture centres but there was no trace of him.” The family filed a missing persons report 20 days after his disappearance, but it did not help.

“Nobody was able to trace him,” she said. “How is it possible that police were not able to track a person in all these years?”

The International Convention for the Protection of All Persons from Enforced Disappearance codifies individuals’ right to be free from enforced disappearance in all circumstances. Since India signed but did not ratify the convention, it is not entirely bound by its provisions. In practice, India often contradicts the aim and intent of the convention, particularly in Kashmir, by offering impunity to those behind these enforced disappearances. For instance, if a missing person is ever located, the armed forces personnel responsible may be exempt from prosecution in civil courts under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 – leaving no hope for justice or redressal.

Tahira, who is associated with the Jammu Kashmir Coalition of Civil Society, and works on the issue of disappeared persons, doesn’t even hope for justice for herself – but wishes she could get some information.

“At this point, I just want to know what happened to my husband,” she said. “I feel he is around, and I can still smell him. But if he is dead, I want to know where he is buried so that my children and I have an address where we can go to mourn. Our sons can visit their father’s grave and offer a prayer. This is why I will keep fighting for him till I am alive.”

But before she became part of a larger, public fight for justice, Tahira had to wage a quieter battle at home.

Her story played out as it does in many patriarchal families: her husband’s disappearance led to the erosion of her agency and her in-laws began misbehaving with her and picking fights with her frequently. Within forty days, she said, they told her to remarry and leave the house. If not, they warned her that they would force her out.

She had reason to worry for her children’s welfare in the house. “My in-laws had mentioned that I should send my children to work as labourers,” she said.

Tahira left, along with her three sons. She moved away from Uri to Srinagar in search of better employment opportunities, and to give her children a better life. She took up several odd jobs at tailoring centres, beauty parlours, and other workplaces, before a local rights group helped her train as a beautician. Her three sons, meanwhile, lived and studied in orphanages as she moved from one job to another, seeking better opportunities.

“My life changed within an instant. From a homemaker who lived with her three loving sons and a husband, I became a half-widow who was forced to leave her children in orphanages,” she said. “I had no choice, because I wanted to ensure they had a roof over their heads and food to eat.”

She added, “My sons would miss me, crave for my presence, and ask me to take them along whenever I visited them in these orphanages. But I had to be stoic. Despite being clueless, I had to assure them that everything would be better and I would be able to take them home someday.”

In 2013, she applied for a loan to build her own home. Her sons moved into her rented accommodation the same year. Over the next three years, she gradually built her house, in Srinagar’s Shalteng area. In 2016, the family moved into the house, where they now live. Her eldest son is in his second year of college, while her middle son is in the twelfth standard – both also work part-time to help manage the family’s finances. Her youngest son is in the tenth standard.

In all this, there was no help from her husband’s family. “Eventually, the family disowned us, refusing my children a share in their family inheritance,” she said.

Like hundreds of other half-widows Tahira did not consider putting up a fight. “When I left Uri, I had no resources to live or take care of my children. A legal fight would have been devastating for me,” she said. “I have some resources now but I do not want to burden myself with these legal issues. I am grappling with depression and have suffered immensely in the last 20 years. I want to live in peace and help other half-widows who are struggling.”

In India, there is no uniform inheritance law. “We have religion-based succession laws,” said academic and author Jaya Sagade, who has written about the impact of such laws on women.

Under Islamic succession laws, Tahira’s children were at a considerable disadvantage.

According to one law, “a person is considered dead when there is no information on their whereabouts for seven years,” explained Habeel Iqbal, an advocate who has worked extensively in the area of Islamic inheritance law. And under another law, “if a man dies while his father is alive, the children of the deceased will not have a share in the grandfather’s assets.”

The majority of land ownership in Kashmir comes from such ancestral roots, according to Iqbal, but the children of the men who disappeared find it hard to get their share in family property “because their father is considered dead in the lifetime of their grandfather,” he explained.

Children like Tahira’s are further shut out because Islamic law lays down strict rules about how property can be distributed.

Except for Muslims, all other religious communities in the country “are entitled to dispose of their entire property by making a will according to their choice,” Sagade said. But, as Iqbal explained, according to Islamic law, two-thirds of a Muslim’s property must go to the direct heirs, and only one-third can be disposed of at the owner’s discretion.

However, Dr Samreen Hussain, who teaches at Dr Ram Manohar Lohiya National Law University in Lucknow, pointed out that the grandfather can still ensure that the grandchildren receive a fair share – either by making a gift deed of property during his lifetime, or allocating the inheritance of the one-thirds that it is at his discretion to them through what is called a “mandatory will”.

The mandatory will is a document that fulfils a tenet of Sharia law, whereby a property owner has to pass on the one-third discretionary portion of his property to those in his family who are not direct heirs and are in need. As per the law, the owner has some discretion to determine who such people might be. But in several Islamic countries, like Turkey and Syria, the governments have made it mandatory in cases where a father dies, for a grandfather to will this one-third of the deceased’s property to his grandchildren, who would otherwise be left out of the inheritance.

Though this is broadly in line with the principles of Sharia law, it is rarely followed in India.

There is another route under Sharia law through which children can claim some support for themselves: they can demand “maintenance” from their grandfather, which can take the form of a share in property.

But here, complex guardianship laws get in the way. “Under Islamic law, a guardian is supposed to take care of the child and fulfill their basic needs such as food, health and education, and this responsibility mostly lies with the male members of the family,” Hussain explained. So when the father dies, she pointed out, it is the grandfather who becomes the guardian, and then the eldest uncle. It is only if there are no uncles, or they are unwilling to look after the child, that guardianship passes to the mother. Technically, Hussain noted, it is only at this stage that the mother can on behalf of the children claim maintenance from the family.

Male family members often misuse this system to avoid paying maintenance to a woman and her children, Hussain said. “The uncles and grandfathers will claim guardianship to shirk their responsibilities.”

Iqbal, the advocate, explained that the family “will claim to be their guardians and yet fail to discharge the duties of a guardian. Sometimes the children of those disappeared have often been found to be living a life of indigence despite these ‘guardians’ being there.”

Children who are exploited in this way are often too young to know their rights. The mothers often lack the education and resources to fight on their behalf.

“So far, there are no mechanisms in place to transfer the ownership of the disappeared man’s property or assets to his wife to make her financially independent. Hence, the cycle of abuse and trauma for the woman continues indefinitely,” Hussain said.

While in theory, children of a disappeared man at least had the option of trying to claim maintenance from their family, their mothers were completely left out in the cold. They were not entitled to receive any inheritance or claim any maintenance from the family. Women with children could receive indirect support that the family gave the children as maintenance, but those who hadn’t given birth to children found themselves completely bereft of support.

Further, the women were also not allowed an easy route to remarriage.

All major schools of thought in Islam, including the Hanafi, Maliki, Shaafi, Hanbali, and Jafria schools, provide different guidelines on the practice of remarriage when a husband disappears. While the Hanafi school states that a woman should wait for 90 years after her husband’s disappearance, different scholars of the Maliki school set the waiting period at a more pragmatic four or seven years.

In 2015, the Jammu and Kashmir government issued a circular that said that a half-widow had to wait seven years after the disappearance of her husband to remarry. This was in conflict with a landmark judgement by a Kupwara court on December 31, 1993, which granted a woman named Hamida permission to remarry four years after her husband had disappeared.

A congregation was organised in 2015 to discuss the question. Eight ulemas, or religious scholars, from different schools of thought of Islam participated in the event, along with members of civil society, APDP representatives, and half-widows. After discussion, the ulemas expressed a joint opinion that half-widows could remarry after four years of their husbands’ disappearance.

However, the move was too little, too late. It had been over two decades since enforced disappearances began disrupting the lives of the state’s half-widows.

For these women, this move brought little relief. By this time, most were planning their children’s marriage or tending to their grandchildren. Very few of them wanted to get married again.

“How would a new marriage at such an age help me?” Atiqa said. “I am old and want a peaceful time now. I already had a difficult time being a half-widow and a single mother all these decades. I had married off one of my daughters and was planning my son’s wedding when the ruling came.”

What many of the women want is to improve their existing lives and ensure that their children get their due. “As soon as my father-in-law dies, I am sure my brother-in-law will disown us to ensure that when the family assets are distributed, we don’t get our share,” said Haseena Begum, a resident of Delina village, in Baramulla.

Haseena Begum’s husband was taken away by security forces in 2000. “The armed forces had local people along with them when they came looking for my husband that night,” said Haseena, who is now 50. “As the men dragged my husband out, we even had an argument with the forces, but they took him anyway. The next morning when we went to the Army camp, they denied everything.”

She looked for her husband everywhere for years but could not find him.

Haseena’s in-laws have given her two rooms in their old wood-and-mud ancestral house in Delina – the rest of the house is unused. But she is anxious about the future.

“My father-in-law has six sons,” she said. “All of them have their own houses and land that they cultivate, but I have nothing except these two rooms.”

She explained that she has been asking her father-in-law to complete legal documentation that would distribute his assets equally. “While he has been giving me verbal assurances, there is nothing on paper,” said Haseena, whose four children live with her. “How can one rely only on assurances?”

But it isn’t just the husband’s family that lets women down – often, even their own families are not supportive of their needs.

Naseema Begum’s husband disappeared in 2002. Her husband worked as a painter in summers and as an auto-driver in winters. One summer day, he left their home in the Fateh Kadal area of Srinagar, to carry out some painting work, and never returned. When Naseema searched for him the same evening, she found out that he had never reached the place of work. She checked with all her relatives and filed a police complaint, but her husband never came back.

In the two decades since, Naseema, now 40, has worked as a domestic worker and taken care of her daughter, as well her husband’s mother and disabled brother, who all lived in the same house.

After her mother-in-law died, Naseema’s brother insisted that she either marry her brother-in-law, or move to her maternal village of Grindwan, around 70 km away from Srinagar. He felt that her cohabiting with a man who was not her husband would damage the “family honour”.

“I had no option but to shift to my native village and live there, as my brother was adamant that I could not live in the same house with my disabled brother-in-law without marrying him,” she said.

Once she moved out, her father-in-law’s sister seized the family property, she said, refusing to give Naseema’s daughter a share in it. “We filed a case in the Kupwara court, which has been going on for a decade now without any outcome,” Naseema said.

Meanwhile, in her native village, Naseema managed to construct a two-room house for herself and her daughter with the help of local organisations, such as APDP. But her brother began eyeing the house and interfering in her domestic matters. She recounted that he even interfered in the matter of her daughter’s marriage. “I wanted to marry my daughter to someone who could live with us here but my brother objected to that as well, so I had to marry her in a different village,” she said.

Naseema now lives alone in her two-room house.

“My husband had a wish to build a house and live in this village,” Naseema said. “I fulfilled that wish by building these two rooms but I have a strong feeling that I will die alone the way I lived alone.” — Courtesy Scroll.in

Scroll.in has produced this story in partnership with the Pulitzer Center.