Madhu Kishwar & ors v. State of Bihar & ors

Author: Rozy Parveen

Edited by: Shadrack Chai

ABSTRACT

Writ petitions were filed under Article 32 of the Indian Constitution against the State of Bihar, including a PIL by Smt. Madhu Kishwar, editor of “Manushi,” on behalf of tribal women, and individual petitions by Smt. Sonamuni and Smt. Muki Dui of the Ho tribe. They challenged sections 6, 7, 8, and 76 of the Chhota Nagpur Tenancy Act, 1908, and customary laws excluding tribal women from inheritance, claiming they violated Articles 14 and 21 of the Constitution. These petitions argued for equal inheritance rights for tribal women, emphasizing their equal contributions to agriculture and family management. However, the Supreme Court’s 1996 judgment in Madhu Kishwar v. State of Bihar partially recognized these rights, leaving significant issues to the government. This paper analyzes the tribal women’s right to succession within the framework of Fundamental Rights and Human Rights, examining the Supreme Court’s decision in light of India’s international commitments to equality and dignity.

KEYWORDS- Economic justice, tribal women.

CASE DETAILS

INTRODUCTION AND BACKGROUND OF JUDGEMENT

The four Hindu Law Acts do not apply to members of the Scheduled Tribes as defined in Article 366, clause 25 of the Constitution of India unless the Central Government extends their application through a notification in the official gazette. Until such a notification is issued, Scheduled Tribes will continue to be governed by their existing law.

FACTS OF THE CASE

The petitioners challenged certain provisions of the Chotanagpur Tenancy Act, of 1908, which provided for male succession to property, arguing that these provisions were discriminatory and unfair to women and therefore violated the equality clause in the Constitution. The State of Bihar had established a Committee to consider possible legislation amendments and examine the issue in detail. The Committee ultimately concluded that the people of the area, particularly those concerned with the question of succession, were not interested in changing the law. They believed that altering the law to allow estates to pass to female heirs would cause significant agitation and unrest among the Scheduled Tribe communities, who have a custom-based way of living

LEGAL ISSUES RAISED

Whether female members of Scheduled Tribes are entitled to equal rights with male members in intestate succession?

RESPONDENT’S ARGUMENTS

The major interests of tribal communities include inheritance of land, forest rights, and social customs such as marriage, divorce, desertion, child support, death, and birth. The Santhals, one of India’s largest tribes, spread across West Bengal, Orissa, Bihar, Assam, and Tripura, exhibit a nuanced approach to succession. Although primarily patrilineal, Santhal succession allows daughters to inherit without sons, followed by other relatives if there are no children. Some Santhals support equal inheritance for sons and daughters. Widows receive a life-estate share upon their husband’s death. Despite ongoing acculturation, Santhals maintain many customs, with slight flexibility towards daughters In contrast, the conservative Saora society strictly prefers sons, and daughters inherit only if there are no sons or close relatives, with widows inheriting their husband’s estate. The 7th Five Year Plan’s working group recommended codifying tribal customary laws. Dr. B.L. Maharde, in his study of Rajasthan’s Girjans, noted the equal division of a deceased father’s property among sons, with the youngest son and grandsons of pre-deceased sons receiving extra shares. Daughters inherit animal wealth, and widows lose property rights upon remarriage. Patrilineal succession is presumed for tribals in Madhya Pradesh, Maharashtra, and Gujarat.

PETITIONER ARGUMENT

The petitioners argued that the existing customary laws of inheritance among tribal communities in Bihar were discriminatory against women, violating their fundamental rights under Articles 14, 15, and 21 of the Constitution of India. They contended that these laws denied women equal rights to inherit property, infringing on their right to equality and dignity, and called for legal reforms to ensure gender equality and justice. The petitioners urged the court to direct the State to amend these discriminatory laws to align with constitutional principles.

JUDGEMENT

The writ petitions were granted, and the rule nisi was confirmed. The Judge ruled that discrimination based on customary inheritance law was unconstitutional, unjust, unfair, and illegal. The Judge emphasized that it was essential for the State to remove obstacles and prohibit all gender-based discrimination as required by Articles 14 and 15 of the Constitution of India. However, the Judge chose not to strike down the provisions under Article 14, as doing so would cause chaos in the current legal system.

CONCLUSION & COMMENTS

While the Hindu Succession Act, of 1956, and the Indian Succession Act, of 1925, do not directly apply to Scheduled Tribes, their principles align with justice and equity. Thus, Scheduled Tribe women inherit their parents’, brothers’, and husbands’ estates equally with male heirs under these Acts’ general principles. However, alienation rights are governed by specific Acts like the Bihar Scheduled Areas Regulation, 1969. A tribal woman wishing to sell land must first offer it to her brother or male descendant. If there is a disagreement on price, a civil court will decide. If no family member buys it, she may sell it to a non-tribal following relevant laws. The writ petitions are allowed, with interim protection for petitioners Nos.2 and 3 continuing until they request otherwise.

REFERENCES

Madhu Kishwar & Ors vs State of Bihar & Ors 1996 SCC (5) 125

Jitmohan Singh Munda v. Ramratan Singh and Another 1958 Bihar Journal Reports 373

Olga Tellis & Ors. v. Bombay Municipal Corporation and Ors. AIR 1986 SC 180