Succession rights of tribal women: Time for gender equality

"When the daughter belonging to the non-tribal is entitled to the equal share in the property of the father, there is no reason to deny such right to the daughter of the Tribal community. Female tribal is entitled to parity with male tribal intestate succession. To deny the equal right to the daughter belonging to the tribal even after a period of 70 years of the Constitution of India under which right to equality is guaranteed, it is high time for the Central government to look into the matter and if required, to amend the provisions of the Hindu Succession Act by which the Hindu Succession Act is not made applicable to the members of the Scheduled Tribe…"

The above ruling made by the Supreme Court in the case of Kamla Neti (deceased; through legal representatives) v. Special Land Acquisition Officer on December 9, 2022 has created ripples within the tribal community which has often been reluctant to speak on the proposition of survivorship rights of women.

Status of tribal women under the Hindu Succession Act, 1956

The Hindu Succession Act, 1956 provides Hindu women an equal right in self-acquired property. As per Mitakshara law, this was earlier limited to only the male heirs of the family. However, after the Hindu Succession (Amendment) Act, 2005, it has now been extended to coparcenary property.

The Act excludes those belonging to the Scheduled Tribes. Section 2(2) of the Act states:

“Notwithstanding anything contained in Sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.”

This means that the Act shall exclude from its purview any person dying intestate who belongs to the Scheduled Tribe community. This has been notified under Article 342 of the Constitution of India.

The reason behind denial of succession rights to tribal women

All tribal communities falling within Schedule V and Schedule VI of the Constitution of India are governed by customary laws in matters of inheritance, marriage and succession. Thus, the two laws on intestate succession in India – the Indian Succession Act, 1925 and the Hindu Succession Act, 1956 - deal with intestate succession of two communities -Christians and Hindus, respectively. Although the STs are not explicitly exempted from the application of the Indian Succession Act, 1925, the state government through Section 3 of the Act has been given the power to exclude any tribal community or groups from its application. This Act codifies the Christian law of succession but does not substantially cover the tribals within it. As a result, most tribes have been excluded from the application of this Act.

A categorical exclusion of STs under the Hindu Succession Act and a covert exemption from the Indian Succession Act leaves STs who do not identify as either of the communities i.e. Hindus or Christians, to bank upon their own customary laws in the absence of any codified law on intestate succession.

Preservation of customs that largely govern ancestral property in the indigenous communities is a major reason behind exemption of STs from the two succession Acts. A majority of tribal societies in the country are patriarchal in nature, where inheritance rights devolve only in the male lineage. Here, the tribal women do not enjoy equal entitlement rights as their male counterparts. The All India Report on Agriculture Census 2015-16 reveals that only 16.7 per cent of ST women possess land when compared to ST men, who hold 83.3 per cent of it. Keeping customs intact should never act as an impediment for promotion of gender equality.

It is the senior citizens (aged 60 years and above) who mostly make will and depositions to divide the family property. Such population is a mere 5.2 per cent of the total ST population. There exists a very low literacy rate among this segment of the tribal population. They are hardly able to read and write, which renders them incompetent to comprehend the repercussions of wills and testaments on the rights of their heirs. At times, they also die without making any such will, which leaves no option for their dependents but to rely on intestate succession and customary laws.

Succession and gender qquality in the tribal community

The recent Hindu Succession Act, 2005 making the daughter a coparcener will make no difference to tribal women, since customary tribal laws continue to discriminate against them in the matter of succession. The Act making the daughter a member of the coparcenery is a significant move towards gender equality in the matter of succession among the Hindus. However, customary tribal law as well as state-level enactments like the Chotanagpur Tenancy Act, 1908 continues to discriminate against women in matters of succession.

As far back as 1982, Madhu Kiswar (editor of the magazine Manushi), Sonamuni and Muki Dui (the widow and married daughter respectively of Muki Banguma from Lonjo village, Singhbhum, Jharkhand) and members of the Ho tribe, challenged Sections 7, 8 and 76 of the Chotanagpur Tenancy Act as being violative of the right to life. Juliana Lakra, an Oraon Christian tribal woman from the Chotanagpur area, also challenged these provisions through a writ petition before the apex court, in 1986 (Madhu Kishwar & Ors. Versus State of Bihar & Ors, 1996). The two petitions raised the common issue of parity between female and male tribal members in the matter of intestate succession and were heard together. Both petitions pertained to tribes (the Ho and the Oraon) in Bihar, although customary laws excluding women from inheritance of land or property are also found among tribals in other states.

In the Madhu Kishwar case, the majority judgment of the Court refused to strike down the provisions as violative of the right to equality, stating that this would bring about chaos in the existing law. The Court took the view that it was undesirable to declare the customs of tribal communities violative of Articles 14 and 15, and the right to life under Article 21 of the Constitution. It felt that this would lead to a plethora of similar claims to bring personal laws in tandem with the Hindu Succession Act, 1956 and the Indian Succession Act, 1925.

However, the Court observed that it is well-established that the right to livelihood is part of the right to life. It elaborated that widows would become destitute after the death of their husbands and lose their livelihood, as the land would revert to the male descendants. This would be violative of their right to life. The Court declared that the female relatives of the last male tenant could hold the land as long as they remain dependent on it for their livelihood. The exclusive right of male succession in Sections 6 and 7 of the Act was held to remain in suspended animation as long as the right to livelihood of female descendants remains valid. 

However, it is the dissenting minority judgment of Justice K Ramaswamy that makes for more interesting reading and could be used as a guideline to move towards greater gender equality among the tribal communities.

The law includes custom or usage that is ancient, well-established and has the force of law. Thus, tribal laws that prohibit inheritance to daughters fall within the law. After the coming into force of the Constitution, pre-constitutional laws inconsistent with fundamental rights are to be considered void. Article 14 of the Constitution guarantees the fundamental right to equality. Article 15 (1) prohibits gender discrimination. Referring to the Directive Principles of State Policy, Justice Ramaswamy points out that Article 39 (a) enjoins the State to promote the welfare of people (men and women alike) by securing a social order in which justice – social, economic and political – informs all institutions of national life.

Why not a separate Tribal Succession Act?

The Court recognizes the concept of Hinduization of the tribals. If it is proved adequately that a tribal is sufficiently Hinduised, he or she may come under the purview of the Hindu Succession Act or other laws applicable specifically to the Hindus instead of tribal customary law. Various court cases have upheld this principle (Budhu Majhi and Anr v. Dukhan Majhi and Ors, 1955). The decision whether a tribal is adequately Hinduized to be governed by Hindu law in affairs of succession or inheritance has to be decided by the court. A decision to this effect usually takes place keeping in mind the customary practices of the community to which the tribal belongs. These include the various religious practices followed, the form of marriage adopted, the practice of cremation rather than burial and the social practices such as women being prohibited from touching the plough.

However, the matter is comparatively clear in the case of Christian converts. In the case of Kartick Oraon v. David Munzi, the Court held that for the purpose of inheritance, the Schedule Tribe status of a person is not lost if he or she converts to Christianity. What about the status of children born from a tribal mother and a non-tribal father? In the context of accessing benefits available to STs, this question of tribal identity and custom was raised in a recent case which was not directly concerned with property. It was held by the Court that such children could be given the status of an ST provided that "the community of the tribals to which the woman belongs has recognized such matrimonial alliance and accepts the couple into their fold" (Society for Protection and Enforcement of Adivasi Rights and Others v. The State and Others, 2001).

According to the Eleventh Report of the Commissioner for Scheduled Castes and Scheduled Tribes released in the year 1961-62, the Government of India stated that in the case of tribals, religion is of no significance as an ST continues to remain a tribal even if he or she changes his or her religion. Above all, the caste system of the Hindus has not fully devolved amongst the tribal community. In the State of Jharkhand, tribals are demanding for a ‘Sarna Dharm Code’ which asks for a separate column christened ‘Sarna’ under the rubric of religion in the census. The Court segregating ‘sufficiently Hinduized’ from amongst the tribals shall invade the cultural cohesion of the indigenous community. Therefore, instead of trying to the bring the tribals among the ‘Hindu’ fold, a separate Tribal Succession Act should be made.

Dr. Shalini Saboo is an Assistant Professor of Law at the Institute of Legal Studies, Ranchi University. She holds a Ph.D from the Department of Contemporary and Tribal Customary Laws at the Central university of Jharkhand.