Case Note & Summary
The Supreme Court heard two writ petitions filed by Madhu Kishwar, an editor of Manushi magazine, along with two Ho tribal women Smt. Sonamuni and Smt. Muki Dui, and Juliana Lakra, an Oraon Christian tribal woman, against the State of Bihar and others. The petitions raised a common question of law: whether a female tribal is entitled to parity with male tribals in intestate succession. The petitioners challenged Sections 7, 8 and 76 of the Chota Nagpur Tenancy Act, 1908, as ultra vires Articles 14, 15 and 21 of the Constitution of India, contending that customary law in Bihar excluding tribal women from inheritance of land or property based solely on sex is discriminatory. The petitioners narrated that tribal women toil equally with men in agricultural operations and family management, but are denied inheritance rights. They alleged that even usufructuary rights conferred on widows or unmarried daughters become illusory due to pressure or violence from lineal descendants; married or unmarried daughters are excluded from inheritance, especially if subjected to adultery by non-tribals; widows on remarriage lose their interest. They sought police protection for petitioner Nos. 2 and 3, and interim directions were given. The State-level Tribal Advisory Board, consisting of the Chief Minister, Cabinet Ministers, legislators and parliamentarians, met on July 23, 1988 and resolved that tribal society is male dominated but female members have usufructuary rights; a widow has usufruct of her husband's property till she is issueless, and if she has offspring, children succeed while she is caretaker; granting inheritance to female descendants would enlarge threat of alienation of tribal land to non-tribals and may introduce dowry malpractices. The State Government reiterated this stand in an affidavit. The core legal issues were whether female tribals are entitled to parity with male tribals in intestate succession; whether Sections 7, 8 and 76 of the Chota Nagpur Tenancy Act, 1908 are ultra vires Articles 14, 15 and 21 of the Constitution; and whether custom excluding women from inheritance can be saved under constitutional provisions. The petitioners argued that the customary law is founded solely on sex, discriminates against women, and is unconstitutional, unjust and illegal. The State argued that female members have usufruct rights, and that conferring inheritance and transfer rights on women would lead to alienation of tribal land and dowry practices. The Court referred to Section 76 of the Act, which saves custom not inconsistent with its provisions. It cited Privy Council decisions requiring custom to be ancient, invariable and proved by clear evidence. The Court noted that Article 13(3)(a) includes custom or usage having force of law and Article 13(1) voids pre-constitutional laws inconsistent with fundamental rights. It discussed Article 14, which prohibits arbitrary exclusion; Article 15(1), which prohibits gender discrimination; and Article 15(3), which permits special provisions for women. The Court also referred to Articles 38, 39(a) and 39(b), and 46, and the U.N. Declaration on the Right to Development, emphasizing that human rights of women are inalienable and integral to universal human rights. By order dated October 11, 1991, the Court observed that Scheduled Tribe people are citizens entitled to constitutional guarantees, and while reasonable regulation of succession may be permissible, exclusion from inheritance would not be appropriate; the State should re-examine feasibility of permitting inheritance while regulating transfer so that property does not go out of the family. The provided excerpt does not include the final operative judgment. The interim orders and observations indicated that exclusion from inheritance was constitutionally problematic, and the State was directed to re-examine the law, but the final holding on the validity of Sections 7, 8 and 76 was not reached in the text supplied.
Headnote
A) Constitutional Law - Gender Discrimination - Customary Exclusion of Tribal Women from Inheritance - Constitution of India, Articles 14, 15(1), 13(1), 13(3)(a) - Petitioners challenged Sections 7, 8 and 76 of Chota Nagpur Tenancy Act, 1908 as ultra vires fundamental rights, contending that patrilineal custom excluding women from inheritance is discriminatory. The Court observed that Article 13(3)(a) includes custom or usage having force of law, that pre-constitutional laws inconsistent with fundamental rights are void, and that arbitrary exclusion is antithetical to equality. Held that gender discrimination in inheritance is subject to constitutional scrutiny under Articles 14 and 15(1) (Paras not mentioned). B) Constitutional Law - Women's Welfare and Positive Discrimination - Article 15(3) permits special provisions for women - Constitution of India, Article 15(3) - The Court noted that while Article 15(1) prohibits gender discrimination, Article 15(3) lifts that rigor and empowers the State to make special provisions to ameliorate women's social, economic and political justice. Held that positive discrimination in favour of women is constitutionally permissible (Paras not mentioned). C) Constitutional Law - Directive Principles of State Policy - Welfare, Equal Livelihood, Resource Distribution, Protection of Scheduled Tribes - Constitution of India, Articles 38, 39(a), 39(b), 46 - The Court referred to Directive Principles requiring the State to secure social order with justice, ensure equal means of livelihood for men and women, distribute material resources for common good, and protect Scheduled Tribes from social injustice and exploitation. Held that these principles inform constitutional interpretation of fundamental rights (Paras not mentioned). D) International Law - Human Rights and Right to Development - UN Declaration on the Right to Development, 1986 - India ratified the Declaration; Article 8 requires measures for equality of opportunity and ensuring women's active role in development. The Court observed that human rights for women are inalienable, integral and indivisible part of universal human rights. Held that developmental law must eliminate gender discrimination and all forms of social injustice (Paras not mentioned). E) Customary Law - Proof of Custom - Custom as Modifying Ordinary Succession - Privy Council decisions in Ramalaxmi Ammal v. Shivanadha Perumal Sheroyar and Abdul Hussain Khan v. Bibi Sona Dero - Custom must be ancient, invariable and established by clear and unambiguous evidence; a custom excluding female heirs from inheritance must be proved with certainty. Held that courts require clear and unambiguous evidence to recognize custom that modifies ordinary law of succession (Paras not mentioned).
Issue of Consideration
Whether female tribal is entitled to parity with male tribal in intestate succession; Whether Sections 7, 8 and 76 of the Chota Nagpur Tenancy Act, 1908 are ultra vires Articles 14, 15 and 21 of the Constitution of India; Whether custom excluding women from inheritance can be saved under the Constitution
Final Decision
Not mentioned in the provided text. However, by interim order dated October 11, 1991, the Court observed that Scheduled Tribe people are citizens entitled to constitutional guarantees, and while reasonable regulation of succession may be permissible, exclusion from inheritance would not be appropriate; the State should re-examine feasibility of permitting inheritance while regulating transfer so that property does not go out of the family.
Law Points
- Article 13(3)(a) includes custom or usage having the force of law
- Article 13(1) makes pre-constitutional laws void to the extent of inconsistency with fundamental rights
- Article 14 prohibits arbitrary exclusion and ensures equality
- Article 15(1) prohibits gender discrimination
- Article 15(3) permits positive discrimination in favour of women
- Articles 38
- 39(a)
- 39(b) and 46 impose duties on the State for welfare and protection of Scheduled Tribes
- custom must be ancient and invariable and established by clear evidence
- human rights of women are inalienable and integral to universal human rights
