Law Should Discriminatory Customary Prevail Over Constitutional Law?
Supreme court of India in its judgement in the case Kamala Neti (Dead) Thr.
Lrs. vs Special Land Acquisition Officer observed that even after a period
of 70 years of the Constitution of India tribal women have not getting there
share in the ancestral property as non-tribal women are getting. It is clear
violation of article 14 (equality before law) and article 21 (protection of life
and personal liberty). Further court directed the Centre to examine the
provisions of the Hindu Succession Act and, if necessary, amend the statute to
extend it to the Scheduled Tribes.
Issues that curtail the rights of ST womenAccording to Section 2(2) of the Hindu Succession Act,1956 states that act shall
not apply to members of any scheduled tribe within the meaning of clause (25) of
article 366 of the constitution unless the central government ,by official
gazette ,otherwise directs. As tribals are govern by their own tribal customary
law, Hindu law is not applicable to tribals.
Customary LawCustom that something practice for long period of time and society accepted it
,For a custom to be legal, it must be ancient, certain, continuous, rational,
moral and not opposed to public policy. can it be accepted as a law. under the
constitution of India article 13(3) custom is also a law. But in majority cases
we fail to prove any custom or usage as we see in case of Dr.Surajmani Stella
Kujur vs Durga Charan Hansdah & Anr respondent fails to prove polygamy as a
custom exist in santhal tribe and these happens in many cases . As most tribal
community females were deserted from there ancestral property .Suppose if we
look in oraon tribe there is not any custom where female getting share in
ancestral property but if she not get married or widow or left her husband's
home she get some part of land for her survival but not as a right.
Why tribal women should have share in ancestral propertyPrabha minz case Jharkhand High court held that the judicial precedent
demonstrate and reflect beyond doubt that a general customary law of inheritance
among Oraon and Santhal tribes has not crystallized in a uniform general
customary law having binding force debarring natural female heirs from right of
inheritance. Judicial decision also reflects an unease to accept and recognize
such inequitable custom.
The Courts have refrained to uniformly or consistently recognize the customary
law of inheritance excluding female from inheritance so as to hold that they
have acquired binding force of general customary law. In every case the claim of
title is to be decided on the pleading and proof of customary law regarding the
prevailing custom. Ideally it is high time that customary law of succession
should be codified and be given a statutory shape. But in meantime each case has
to be judged individually regarding the applicable custom.
In the present case the defendants have failed to prove general binding custom
among the Oraon tribe that females were excluded from inheritance. This
substantial question of law is accordingly answered in favour of the Prabha minz.
Non tribal women have there right in ancestral property as per Hindu succession
act,1956. But not applicable to tribal women because tribal have their own
custom. If under article 13(3) of constitution custom is law but if not violate
the fundamental rights, by not giving equal right to tribal women as per tribal
men it will be clear violation of article 14, article 15 and article 21 of our
Now tribal women are also representing her self in all most all the field, now
our President is also a tribal women and they are performing much better then
tribal men. Then why tribal women have not right on ancestral property as per
Suppose if custom allow then also the very basic fundamental right that
mentioned in our constitution should be denied to tribal women, Sabarimala
judgement gave importance to fundamental rights not what custom says.
Now its demand of time that our agwagaan (who leads society) come forward and
decide that our custom will coordinate with the constitution and law of land .
Thus in, conclusion proper codification of customary law is demand of time after
taking all stakeholders views. The tribal are known for giving equal rights and
status to women. Now it is time to legalize this, so that next Prabha minz not
knock the door of court to get her right in ancestral property.
Written By: Deepak Oraon, LLB (Campus Law Centre ), Delhi University
Law Article in India
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