# MAOHU KISHWAR AND ORS. ETC v. STATE OF BIHAR AND ORS

- **Citation:** [1996] Supp. 1 S.C.R. 442
- **Court:** Supreme Court of India
- **Decided:** 1996
- **Bench:** Kuldip Singh, K. Ramaswamy, M.M. Punchhi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maohu-kishwar-and-ors-etc-v-state-of-bihar-and-ors-14091
- **Pages:** 44

## Headnote

Hindu Succession Act, 195~Section 3(2}-lndian Succession Act,
192~Section 3-Power to exempt any race, sect or tribe from operation of the
Act-Tribals--Whether provisions of these Acts are applicable to customC govemed tribals-Held, No-Customs of tribal inhabitants excluding tribal
women from inheritance of land or property-Whether discriminatory-Held,
No.
Chota Nagpur Tenancy Act, 1908-Sections 7 and 8-T1ibals-Exclusive right of male succession-Whether provisions of Sections 7 and 8 can
D be held as violative of Article 14 of the Constitutiol!-Held, No-Constitutional right to livelihood of females-Intervening rights uf female dependents/descendants.
E
F
G
Constitution of India-Articles 14, 15, 21-Tnbals--Custom of intestate
succession-Whether violative of A1t. 14, 15, 21-Held, No.
The petitioners filed these writ petitions challenging the provisions of
Sections 7, 8 and 76 of the Chota Nagpur Tenancy Act, 1908, as discriminatory
and u~fair against women and therefore ultra vires Articles 14,15 and21 of the
Constitution of India alleging that the customary law operating in the Bihar
State and other parts of the country excluding tribal women from inheritance
of land or property belonging to father, husband, mother and confennent of
right to inheritance to the male heir or linear descendants being found solely
on sex is discriminatory.
Disposing of the writ petitions, this Court
HELD : per majority (M.M. Punchhi for himself and Kuldip Singh,
JJ.)
1.1. General rule of legislative practice is that unless there is anything
repugnant in the subject or context, words importing the masculine gender
H used in statutes are to be taken to include females. But in matters of
442
·,
MADHU KISHWAR v. STATE
443
succession the general rule of plurality would have to be applied with A
circumspection. The provision of Section 3(2) in Hindu Succession Act
appears to have been inserted ex abundant/ cautela. Even under Section 3
of the Indian Succession Act the State Government is empowered to
exempt any race, sect or tribe from the operation of the Act and the tribes
of l\1undas, Oraons, Santals etc. in the State- of Bihar, who arc included, B
have been so exempted. Thus neither the Hindu succession Act, nor the
Indian Succession Act, nor even the Shariat Law is applicable to the
custom-governed tribals. An custom, as is well recognized, varies from
people to people and region to region. [476-D-F]
1.2. Considering divisions and visible barricades put up by the
C
sensitive tribal people valuing their oMI customs, traditions and usages,
judicially enforcing on them the principles of personal laws applicable to
others, on an elitist approach or on equality principle, by judicial activism,
is a difficult and mind-boggling effort. Under the circumstances it is not
desirable to declare the customs of tribal inhabitants as offending Articles
14, 15 and 21 of the Constitution and each case must be examined when
full facts are placed before the Court. [476-G-H; 477-C]
13. Rules of succession are indeed susceptible of providing differential treatment, not necessarily equal. Non-uniformities would not in all
events violate Article 14. Judge- made amendments to provisions, over and
above the available legislature, should normally be avoided. There is no
scope thus in reading down the provisions of section 8 and even that of
section 7 of the Chhota Nagpur Tenancy Act, 6 of 1908 so as include female
descendants alongside the male descendants in the context of sections 7
and 8. It is only in the larger perspective of the Constitution can the answer
to the problem be found. [477-G-H; 482-G)
1.4. Traditionally and historically, the agricultural family is identified by the male head and this is what Sections 7 and 8 recognise. But on
D
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his death, his dependent family females, such as his mother, widow G
daughter, daughter-in-law, grand-daughter, and other joint with him have,
under Sections 7 and 8, to make way to male relatives within and outside
the family o

## Text

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A
MAOHU KISHWAR AND ORS. ETC.
v.
STATE OF BIHAR AND ORS.
APRIL, 7, 1996
B
[KULDIP SINGH, K. RAMASWAMY AND M.M. PUNCHHI, JJ.]
Hindu Succession Act, 195~Section 3(2}-lndian Succession Act,
192~Section 3-Power to exempt any race, sect or tribe from operation of the
Act-Tribals--Whether provisions of these Acts are applicable to customC govemed tribals-Held, No-Customs of tribal inhabitants excluding tribal
women from inheritance of land or property-Whether discriminatory-Held,
No.
Chota Nagpur Tenancy Act, 1908-Sections 7 and 8-T1ibals-Exclusive right of male succession-Whether provisions of Sections 7 and 8 can
D be held as violative of Article 14 of the Constitutiol!-Held, No-Constitutional right to livelihood of females-Intervening rights uf female dependents/descendants.
E
F
G
Constitution of India-Articles 14, 15, 21-Tnbals--Custom of intestate
succession-Whether violative of A1t. 14, 15, 21-Held, No.
The petitioners filed these writ petitions challenging the provisions of
Sections 7, 8 and 76 of the Chota Nagpur Tenancy Act, 1908, as discriminatory
and u~fair against women and therefore ultra vires Articles 14,15 and21 of the
Constitution of India alleging that the customary law operating in the Bihar
State and other parts of the country excluding tribal women from inheritance
of land or property belonging to father, husband, mother and confennent of
right to inheritance to the male heir or linear descendants being found solely
on sex is discriminatory.
Disposing of the writ petitions, this Court
HELD : per majority (M.M. Punchhi for himself and Kuldip Singh,
JJ.)
1.1. General rule of legislative practice is that unless there is anything
repugnant in the subject or context, words importing the masculine gender
H used in statutes are to be taken to include females. But in matters of
442
·,
MADHU KISHWAR v. STATE
443
succession the general rule of plurality would have to be applied with A
circumspection. The provision of Section 3(2) in Hindu Succession Act
appears to have been inserted ex abundant/ cautela. Even under Section 3
of the Indian Succession Act the State Government is empowered to
exempt any race, sect or tribe from the operation of the Act and the tribes
of l\1undas, Oraons, Santals etc. in the State- of Bihar, who arc included, B
have been so exempted. Thus neither the Hindu succession Act, nor the
Indian Succession Act, nor even the Shariat Law is applicable to the
custom-governed tribals. An custom, as is well recognized, varies from
people to people and region to region. [476-D-F]
1.2. Considering divisions and visible barricades put up by the
C
sensitive tribal people valuing their oMI customs, traditions and usages,
judicially enforcing on them the principles of personal laws applicable to
others, on an elitist approach or on equality principle, by judicial activism,
is a difficult and mind-boggling effort. Under the circumstances it is not
desirable to declare the customs of tribal inhabitants as offending Articles
14, 15 and 21 of the Constitution and each case must be examined when
full facts are placed before the Court. [476-G-H; 477-C]
13. Rules of succession are indeed susceptible of providing differential treatment, not necessarily equal. Non-uniformities would not in all
events violate Article 14. Judge- made amendments to provisions, over and
above the available legislature, should normally be avoided. There is no
scope thus in reading down the provisions of section 8 and even that of
section 7 of the Chhota Nagpur Tenancy Act, 6 of 1908 so as include female
descendants alongside the male descendants in the context of sections 7
and 8. It is only in the larger perspective of the Constitution can the answer
to the problem be found. [477-G-H; 482-G)
1.4. Traditionally and historically, the agricultural family is identified by the male head and this is what Sections 7 and 8 recognise. But on
D
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his death, his dependent family females, such as his mother, widow G
daughter, daughter-in-law, grand-daughter, and other joint with him have,
under Sections 7 and 8, to make way to male relatives within and outside
the family of the deceased entitled thereunder, disconnecting them from
the land and their means of livelihood. Their right to livelihood in that
instance gets affected, a right constitutionally recognised, a right which the
female enjoyed in common with the last male holder of the tenancy. It is H
444
SUPREME COURT REPORTS [1996] SUPP.1 S.C.R.
A
in protection of that right to livelihood, that the immediate female relatives
of the last male tenant have the constitutional remedy to stay on holding
the land so long as they remain dependent on it for earning their
livelihood, for otherwise it would render them destitute. It is on the
exhaustion of, or abandonment of land by, such female descendants can
B the males in the line of descent take over the holding exclusively. The
exclusive right of male succession conceived of in section 7 and 8 has to
remain suspended animation so long as the right of livelihood of the female
descendant of the last male holder remains valid and in vogue. It is in this
way only that the constitutional right to livelihood of a female can interject
in the provisions, to be read as a burden to the statutory right of male
C succession, entitling her to the status of an intervening limited dependents/descendants under sections 7 and 8. In this manner alone, and upto
this extent can female dependents/descendents be given some succour so
that they do not become vagrant and destitutes. This Court would rather,
on the other hand, refrain from striking down the provisions as such on
D the touchstone of Article 14 as this would bring about a chaos in the
existing state of law. The intervening right of female dependents/descendants under sections 7 and 8 of the Act are carved out to this extent, by
suspending the exclusive right of the male succession till the female
dependants/descendants chooses other means of livelihood manifested by
abandonment or release of the holding kept for the pnrpose. At the same
E time direction is issued to the State of Bihar to comprehensively examine
the question on the premise of our constitutional ethos and the need voiced
to amend the law. It is also directed to examine the question of recommending to the Central Government whether the later wonld consider it
just and necessary to withdraw the exemptions given the Hindu Succession
F
Act and the Indian Succession Act at this point of time in so far as the
applicability of these provisions to the Scheduled Tribes in the State of
G
Bihar is concerned. [ 484-G-H; 485-A-G]
Jitmuhwi Singh Munda v. Ramrata11 Si11gh a11d A11vther, (1958) Bihar
law Journal Reports 373, distinguished
Olga Tellis & Ors. v. Bombay Municipal C01poration and Others, AIR
(1986) 180, referred to.
Per Minority (K. Ramaswamy J.)
H
1.1. Customs among the Scheduled Tribes, vary from tribe to tribe
MAD HU KISHWAR v. STATE
445
and region to region, based upon the established practice prevailing in the A
respective regions and among particular tribes. Therefore, it would be
diflicult to dedde, without acceptable material among each tribe, whether
customary succession is valid, certain, ancient and consistent and whether
it has acquired the status of law. Ho"'ever, as customs are prevalent and
being followed among the tribes in matters of succession and inheritance
apart from other customs like marriage, divorce etc. Customs became part
of the trial laws as a guide to their attitude and practice in their social life
and not a final definition of law. They are accepted as set of principles and
are being applied when succession is open. They have accordingly nearly
acquired the status of law. Under these circumstauces, it is not desirable
B
to grant general declaration that the custom of inheritance offends Articles
C
14, 15 and 21 of the Constitution. Each case must be examined and decided
as and when full facts are placed before the Court. [467-F-H; 468-B]
1.2. The provisions of Hindu Succession Act, 1956 and the Indian
Succession Act, 1925 though in terms, would not apply to the Scheduled D
Tribes, the general principles contained therein being consistent with
justice, equity, fairness, justness and good conscience would apply tu them.
Accordingly the Scheduled Tribe women would succeed to the estate of
their parent, brother, husband, as heirs by intestate succession and inherit
the property with equal share with male heir with absolute right as per the
general principles of Hindu Succession Act, 1956, as amended and interpreted by this Court and equally of the Indian Succession Act to tribal
Christian. However, the right of alienation will be subject to the relevant
provisions like the Bihar Scheduled Areas Regulation, 1969, Santhals
(Amendment) Act, 1958, Santhal Parganas Tenancy (Supplementary
Provisions) Act 1949 as amended from time to time etc. They would be
applicable to them and subject to the conditions mentioned therein. Jn case
the tribal woman intends to alienate the land, subject to obtaining appropriate permission from the competent authority under the appropriate
Act, she should first offer the land for sale to the brother or in his absence
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to any male lenial descendant of the family and the sale will be in terms
of mutually agreed consideration and other terms etc. Jn case of any G
disagreement on consideration, the consideration shall be determined on
an application filed by either party before the competent civil court of
original jl'risdiction over the area in which the land is situated and the
decision of the civil court after adduction of evidence and consideration
thereof, shall be final and binding on the parties. Jn case the brother or H
446
SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A
lenial descendant is not willing to purchase either by mutual agreement or
as per the price settled by the civil court, the temale tribal shall be entitled
to alienate the land to the nou-tribal but subject to the provisions of the
appropriate Act. [473-E-H; 474-A-C]
B
13. By operation of Section 13(1) of General Clauses Act, males
includes females, of course, subject to statutory scheme which by now is
subject to the Constitution. In Sections 7 and 8 of the Act if the words "male
descendants" are read to include female descendants, the daughter, married or unmarried and the widow are entitled to succeed to the estate of the
father, husband, or son. Scheduled Tribes are as much citizens as others
C
and are entitled to equality. Sections 7 and 8 are accordingly read down and
so on that premise are valid. [469-G-H; 470-A)
1.4. The Hindu Succession Act regulates succession of agricultural
land and the word 'property' in Sections 6, to 8, 14, 15 and other sections
in that Act would include agricultural land. Thus considered, the operation
D
of Sub-s.(1) of Section 4 will have an overriding effect for Hindu female
claiming parity with Hindu male for succession to the agricultural lands
held by the father, mother, etc. and sub-s.(2) does not stand an impediment
for such a right of devolution. [471-G; 472-A-B]
E
F
Ramalaxmi Ammal v. Shivanadha Penunal Sheroyar, (1872) 14 Moors
Indian Appeals 585; Abdul Hussain Khan v. Bibi Sona Dero, (1917-1918)
45 Indian Appeals 10; Sant Ram v. Labh Singh, [1965] 7 SCR 756; Bahu
Rama v. Baijl!Oth Singh, (1962) Supp. 3 SCR 724; G. Dasarath Rama Rao
v. State of A.P., [1961] 2 SCR 931;Atma Prakash v. State of Haryana, [1986]
2 SCC 249; V. Tulasamma v. Sesha Reddy, AIR (1977) SC 1944; Chiranjeet
Lal v. Union of India, (1950] SCR 869; State of West Bengal v. Anwar Ali
Sarkar, [1952] SCR 869; Menaka Gandhi v. Union of India, [1978] 2 SCR
621; State of Bihar v. Kameswar Singh, [1952] SCR 889; Kasturi Devi v. State
of Kamataka, [1980] 4 SCC 1; Chai;dra Bhavan Boarding House v. State of
Mysore, [1970] 2 SCR 600; Narendar Prasad v. State of Gujarat, [1975] 2
SCR 317; Thota Sesharathamma v. Thota Manikyamma, JT (1991) 3 SC
G 506; CB. Methamma v. Union of India, [1980] 1 SCR 668; Air India v.
Nagesh Mi1ja, [1982) 1 SCR 438; Sheikriyammada Nalla Kaya v. Administrat01; Union Tem·tary of Laccadives, AIR (1967) Kerala 259; Dol'WI!
Sahu v. Ruka, AIR (1931) Patna 198; Ganesh Matha v. Shib Charan, AIR
(1931) Patna 305; Harbans Singh v. Guranchatta Singh, [1991] 1 SCR 614;
H Jitmohan Singh Munda v. Ramratan Singh, (1958) Bihar Law Journal
MADHU KISHWAR v. STATE [K. RAMASWAMY, J.]
447
Report 373; Jani Bai v. State of Rajasthan, AIR (1989) Raj. 115; Basavani A
Gouda v. Smt. Cl1a11nabasawwa, AIR (1971) Mysore 151; Amar Singh v.
Baldev Singh, AIR (1960) Punjab 666 (Full Bench); L<Ltmi Debi v. S.K
Panda, AIR (1957) Orissa 1; Gopi Chand v. Bhagwani Devi, AIR (1964)
Punjab 272; Phulmani Dibya v. State of 01issa, AIR (1974) Orissa 135;
Tokha v. Smt. Sammon, AIR (1972) Punjab and Haryana 406; Bajaya v. B
Gopikabai, [1978] 2 SCC 542; Smt. Sooraja v. SDO, Rehli, [1995] Vol. II
sec 45, referred to.
U.N. Report 1980; Eugine Smith, Indian Constitution; Haimendorf,
Tribes In India, the Struggle for Survival; Dr. L.P. Vidyarthi, Tribal
Development Act and Its Administration; Prof. P. Ramaiah, Issues in
C
Tribal Development; Archer Tribal Law and Justice; Sharad Chandra Roy,
The Origins of Chhotanagpur (1915); S.K. Ghosh, Law Enforcement in
Tribal Areas; Report on Codification of Customary Laws and Inheritance
Laws in the Tribal Societies of Orissa by Dr. Bhupinder Singh and Dr.
Neeti Mahanti; Prof. Diwan, Law of Intestate and Testamentary Succession; Mayne's Hindu Law and Usage (13th Edn), referred to.
D
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 5723 of
1982 Etc.
Under Article 32 of the Constitution of India.
D.N. Goburdhan for the Petitioner in W.P. (C) No. 5723/82.
J.P. Verghese for L.J. Vadakare for the Petitioner in W.P. (C) No.
219/86.
B.B. Singh and Kumar Rajesh Singh for the Respondent in W.P. (C)
No. 5723/82.
Pramod Swarup, Praveen Swarup and Ms. Kamini .Jaiswal (NP)
the Respondent in W.P. (C) No. 219/86.
The Judgment of the Court was delivered by
for
K. RAMASWAMY, JJ. These two writ petitions raise common quesE
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tion of law: whether female tribal is entitled to parity with male tribal in
intestate succession? The first petitioner is an Editor o[ a Magazine
'Manushi' espousing the causes to ameliorate the social and economic H
448
SUPREME COURT REPORTS (1996] SUPP. 1 S.C.R.
A
backwardness of Indian woman and to secure them equal rights. Petition~r
Nos. 2 Smt. Sonamuni and 3 Smt. Muki Dui are respectively widow and
married daughter of Muki Banguma, Ho tribe of Longo village, Sonua
Block, Singhbhum District in Bihar State. The petitioner in Writ Petition
No. 219186, Juliana Lakra is an Oraon Christian Tribal woman from Chhota
B
Nagpur area. They seek declaration that Sections 7, 8, and 76 of the Chhota
Nagpur Tenancy Act, 6of1908, (for short, the 'Acl') are ultra vires Articles
l4, 15 and 21 of the Constitution of India. They contend that the customary
law operating in the Bihar State and other parts of the country excluding
tribal women from inheritance of land or property belonging to father,
C
husband, mother and conferment of right to inheritance to the male heirs
or lineal descendants being founded solely on sex is discriminatory. The
tribal women toil, share with men equally the daily sweat, troubles and
tribulations in agricultural operations and family management. Their discrimination based on the cu:-.tomary law of inheritance is unconstitutional,
D unjust, unfair and illegal. Even usufructuary right conferred on a widow or
an unmarried daughter become illusory due to diverse pressures brought
to bear brunt at the behest of lineal descendants or their extermination.
Even n1arried or unn1arricd daughters arc excluded from inheritance, \Vhcn
they were subjected to adultery by non-tribals; they are denuded of the
E
right to enjoy the property of her father or deceased husband for life. The
widow on remarriage is denied inherited property of her former husband.
They have elaborated by narrating several incidents in which the women
either were forced to give up their life interest or became target of violent
attacks or murdered. Petitioner Nos. 2 and 3 in the first writ petition sought
F
police protection for their lives and interim directions were given.
When this court has taken up the matter for hearing, in the light of
the stand of the respondents takL'.n at that time to suitably amend the Act,
by order dateJ December 16, 1986, the case was adjourned with the hope
G that the State Government would suitably amend Sections 7 and 8 of the
Act. By further order dated August 6, 1991, this court after being apprised
of the State Government constituting a Committee to examine the
desirability to amend the Act giving equal rights of inheritance to womea,
further adjourned the hearing awaiting the report of the Committee. The
H
State-Level Tribal advisory Board consisting of the Chief Minister, Cabinet
MADHU KISHWAR v. STATE [K.RAMASWAMY,J.]
449
Ministers, legislators and parliamentarians representing the tribal areas, A
met on July 23, 1988 and decided as under :
"The tribal society is dominated by males. This, however, does not
mean that the female members are neglected. A female member
in a tribal family has right of usufruct in the property owned by B
her father till she is unmarried and the same is the property of her
husband after the marriage. However, she does not have any right
to. transfer her share to any body by any means whatsoever. A
widow will have right to usufruct of the husband's properly till such
time she is issueless and, in the event of her death the property
will revert back to the legal heirs of her late husband. In case of C
a widow having offspring the children succeed the property of the
father and the mother will be a care taker of the property till the
children attain majority. The Sub-Committee also felt that every
tribal does have some land and in case the right of inheritance in
the ancestral properly is !,'fanted to the female descendants, this D
will enlarge the threat of alienation of the tribal land in the hands
of non-tribals. The female members being given right of transfer
of their rights in the origin of mal-practices like dowry and the like
prevalent in the other non-tribal societies'
When the matter was taken up for final disposal and the resolution
of the Board was brought to the notice of this Court, by order dated
October 11, 1991, this court further expressed thus:
"Scheduled tribe reople are as much citizens as others and they
are entitled to the benefit of guarantees of the Constitution. ll may
be that the law can provide reasonable regulation in the matter of
succession to properly with a view to maintaining cohesiveness in
regard to Scheduled Tribes and their properties. But exclusion
from inheritance would not be appropriate. Since this aspect of
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the matter has not been examined by the Stale of Bihar and the G
feasibility of permitting inheritance and simultaneously regulating
such inheritance for the purpose of ensuring that the property does
not go out of the family by way of transfer or otherwise we are of
the view that in the peculiar facts of the case the State of Bihar
should re-examine the matter.
11
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450
SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
The State Government reiterated its earlier stand, as stated in an
affidavit filed in this behalf. Sections 6, 7, 8 and 76 of the Act are as follows:
"6. Meaning of raiyat. - (1) "Raiyat" means primarily a person who
has acquired a right to hold land for the purpose of cultivating it
by himself, or by members of his family, or by hired servants, or
with the aid of partners; and includes the successors-in-interest of
persons who have acquired such a right, but does not include a
Nundmi Khunt-kattidar.
Explanation - Where tenant of land has the right to bring it under
cultivation, he shall be deemed to have acquired a right to hold it
for the purpose of cultivation, notwithstanding that he uses it for
the purpose of gathering the produce of it or of grazing cattle on
it.
(2) A person shall not be deemed to be a raiyat unless he holds
land either immediately under a proprietor or immediately under
a tenure-holder or immediately under a Nundari Khunt-kattidar.
(3) In determining whether a tenant is a tenure-holder or a raiyat,
the court shall have regard to -
(a) local customs, and
(b) the purpose for which the right of tenancy was originally
acquired.
7. (1) Meaning of 'raiyat having khunt-khatti rights'. - "Raiyat
having khunt katti rights1' means a raiyat in occupation of, or having
any subsisting title to, land reclaimed from jungle by the original
founders of the village or their descendants .in the male line, when
such Raiyal is a member of lhe family which founded the village
or a descendant in the male line of any member of such family:
Provided that no raiyat shall be deemed to have klumt katti
rights in any land unless he and all his predecessors-in-title have
held such land or obtained a title thereto by virtue of inheritance
from the original founders of the village.
(2) Nothing in this Act shall prejudicially affect the rights of any
MADHUKISHWARv.STATE(KRAMASWAMY,J.]
451
person who has lawfully acquired a title to a khunt kattidmi tenancy A
before the commencement of this Act.
8. Meaning of Mundari Khnnt - kattidar. - "Mzmdmi Khunti-kattidar
means a Mundari who has acquired a right to hold jungle land for
the purpose of bringing suitable portions thereof under cultivation
by himself or by male members of his family, and includes -
(a) the heirs male in the line of any such Mundari, when they are
in possession of such land or have any subsisting title thereto; and
B
(b) as regards any portions of such land which have remained C
continuously in the possession of any such Mundari and his descendants in the male line, such descendants.
76. Saving of custom. - Nothing in this Act shall affect any custom,
usage or customary right not inconsistent with, or not expressly or
by necessary implication modified or abolished by, its provisions." D
In Ramalaxmi Ammal v. Shivanandha Penunal Sheroyar,, (1872) 14
Moors Indian Appeals 585, the judicial Committee had held that custom
is the essence of special usage modifying the ordinary law of succession
that it should be ancient and invariable; and it is further essential that they E
should be established to be so by clear and unambiguous evidence. It is
only by means of such evidence that the courts can be assured of their
existence and that they possess the conditions of antiquity and certainty on·
which alone the legal title to recognition depends. InAbdul Hussain Kl1a11
v. Bibi Sona Dero, (1917)-1918 45 Indian Appeals 10, when it was pleaded
that by customs of the family, the sister of an intestate Mohammedan was
F
excluded from inheritance in favour of a male paternal collaterals, by
operation of Section 26 of the Bombay Regulation IV of 1827, (a usage was
in question in the suit), the Board held that the custom was not established
to exclude the sister of the deceased from inheritance.
By operation of Article 13(3)(a) of the Constitution law includes G
custom or usage having the force of Jaw. Article 13(1) declares that the
pre-constitutional laws, so far as they are inconsistent with the fundamental
rights shall, to the extent of such inconsistency, be void. The object,
thereby, is to serure paramountcy to the Constitution and give primacy to
fundamental rights. Article 14 ensures equality of law and prohibits inH
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SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
vidious discrimination. Arbitrariness or arbitrary exclusion are sworn
enemies to equality. Article 15(1) prohibits gender discrimination. Article
15(3) lifts that rigour and permits the State to positively discriminate in
favour of women to make special provision, to ameliorate their social,
economic and political justice and accords them parity. Article 38 enjoins
the State to promote the welfare of the people (obviously men and women
alike) by securing social order in which justice, - social, economic and
political - shall inform of all the institutions of notional life. Article 39(a)
and (b) enjoin that the State policy should be to secure that men and
women equally have the right to an adequate means of livelihood and the
ownership and control of the material resources of the community are so
distributed as best to subserve the common good. Article 38(2) enjoins the
State to minimise the inequalities i~ income and to endeavour to eliminate
inequalities in status, facilities and opportunities not only among individuals but also amongst groups of people. Article 46 accords special
protection and enjoins the State to promote with special care the economic
D and educational interests of the Scheduled Castes and Scheduled Tribes
and other weaker sections and to protect them from social injustice and all
forms of exploitation. The Preamble to the Constitution charters out the
ship of the State to secure social, economic and political justice and
equality of opportunity and of status and dignity of person to every one.
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The General Assembly of the United Nations adopted a Declaration
on December 4, 1986 on "The Right to Development" to which India played
a crusading role for its adoption and ratified the same. Its preamble
cognisises that all human rights and fundamental freedoms are indivisible
and interdependent All Nation State are concerned at the existence of
serious obstacles to development and complete fulfillment of human
beings, denial of civil, political, economic, social and cultural rights. In
order to promote development, equal attention should be given to the
implementation, promotion and protection of civil, political, economjc,
social and political rights.
Article 1(1) assures right to development - an inalienable human
right, by virtue of which every person and all people are entitled to
participate in, contribute to, and enjoy economic, social, cultural and
political development in which all human rights and fundamental freedoms
can be fully realised. Article 6(1) obligates the State to observe all human
H rights and fundamental freedoms for all without any discrimination as to
MADHUKISHWAR v. STATE[K.RAMASWAMY,J.]
453
race sex, language or religion. Sub-article (2) enjoins that .................. equal A
attention and urgent consideration should be given to the implementation,
promotion and protection of civil, political, economic, social and political
rights. Sub- article (3) thereof enjoins that "State should take steps to
eliminate obstacle to development resulting from failure to observe civil
and political rights as well as economic, social and cultural rights. Article B
8 castes duty on the State to undertake, ...................... all necessary measures
for the realisation of right to development and ensure, inter alia, equality
of opportunity for all in their access to basic resources ............. and fair
distribution of income. Effective measures should be undertaken to ensure
that women have an active role in the development process. Appropriate
economic and social reforms should be carried out with a view to eradicate C
all social injustice.
Human rights are derived from the dignity and worth inherent in the
human person. Human Rights and fundamental freedom have been
reiterated by the Universal Declaration of Human Rights. Democracy, D
development and respect for human rights and fundamental freedoms are
inter-dependent and have mutual reinforcement. The human rights for
\VOman, including girl child arc, therefore, inalienable, integral and indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in
political, social, economic and cultural life are concomitants for national
development, social and family stability and growth, culturally, socially and
economically. All forms of discrimination on grounds of gender is violative
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of fundamental freedoms and human rights. Vienna Convention on the
Elimination of all forms of Discrimination Against Women (for short
"CEDAW") was ratified by the U.N.O. on December 18, 1979. The Government of India who was an active participant to CED AW ratified it on June
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19, 1993 and acceded to CEDAW on August 8, 1993 with reservation on
Articles 5(e), 16(1), 16(2) and 29 thereof. The Preamble of CEDAW
reiterates that discrimi":ation against women, violates the principles of
equality of rights and respect for human dignity; is an obstacle to the
participation on equal terms with men in the political, social, economic and G
cultural life of their country; hampers the growth of the personality from
society and family and makes it more difficult for the full development of
potentialities of women in the service of their countries and of humanity.
Poverty of women is a handicap. Establishment of new international
economic order based on equality and justice will contribute significantly H
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SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
towards the promotion of equality between men· and women etc. Article 1
defines discrimination against women to mean
11any distinction, exclusion
or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognized enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and
women, all human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field." Article 2(b) enjoins the
state parties while condemning discrimination against women in all its
forms, to pursue, by appropriate means, without delay, elimination of
discrimination against women by adopting "appropriate legislative and
other measures including sanctions where appropriate, prohibiting all discriminations against women" to take all appropriate measures including
legislation, to modify or abolish existing laws, regulations, customs and
practices which constitute disc1i1ninatian against won1en. Clause (C) enjoins
to ensure legal protection of tile 1igilts of women on equal basis with men
through constituted national tribunals and other public institutions against
D any act of discrimination to provide effective protection to women. Article 3
enjoins State parties that it shall take, in all fields, in particular, in the
political, social, economic and cultural fields, all appropriate measures
including legislation to ensure full development and advancement of
women for the purpose of guaranteeing them the exercise and enjoyment
of human rights and fundamental freedoms on the basis of equality with
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men. Article 13 states that "the State parties shall take all appropriate
measures to eliminate discrimination against women in other areas of
economic and social life in order to ensure, on a basis of equality of men
and women". Article 14 lays emphasis to eliminate discrimination on the
problems faced by rural women so as to enable them to play "in the
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economic survival of their families including their work in the nonmonetized sectors of the economy and shall take...... all appropriate
measures ........
11 Participation in and benefit from rural development in
particular, shall ensure to such women the right to participate in the
development programme to organize self groups and cooperatives to obtain equal access to economic opportunities through employment or selfG employment etc. Anic/e 15(2) enjoins to accord to women equality with men
before the law, in particular, to adn1inister property ..... "
The Parliament has enacted the Protection of Human Rights Act,
1993, Section 2(b) defines human rights to mean "the rights relating to life,
H liberty, equality and dignity of the individual guaranteed by the Constitu-
MAOHU KISl-IWAR v_ STATE [KRAMASWAMY,J.J
455
tion, cn1bodied in the international Conventions and enforceable by cotlrts
in India". Thereby the principles embodied in CEDAW and Lhe concomilanl Right to Development became integral parts of the Indian Constitution and the Hum an Rights Act and became enforceable. Section 12
of Protection of Human Rights Act charges the Commission with duty for
proper implementation as \Vell as prevention of violation of the human
rights and fundamental freedoms.
Article 5(a) of CEDAW lo which the Government of India expressed
reservation does not stand in its way and in fact Article 2(1) denudes its
effect and enjoins to implement Article 2(f) read with its obligation undertaken under Articles 3, 14 and 15 of the Convention vis-a-vis Articles 1, 3,
6 and 8 of the Declaration of Right to Development Though the directive
principles and fundamental rights provide the matrix for develr 1Jment of
human personality and elimination of discrimination, these conventions
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add urgency and teeth for immediate implementation. It is, therefore,
imperative for the State to eliminate obstacles, prohibit all gender based D
discriminations as mandated by Articles 14 and 15 of the Constitution of
India. By operation of Article 2(f) and other related articles of CEDAW,
the State should by appropriate measures including legislation, modify law
and abolish gender based discrimination in the existing laws, regulations,
customs and practices which constitute discrimination against women.
Article 15(3) of the Constitution of India positively protects such
Acts or actions. Article 21 of the Constitution of India reinforces "right to
life". Equality, dignity of person and right to development are inherent
rights in every human being_ Life in its expanded horizon includes all that
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give meaning to the person's life including culture, heritage and tradition F
with dignity of person. The fulfilment of that heritage in full measure would
encompass the right to life. For its meaningfulness and purpose every
woman is entitled to elimination of obstacles and discrimination based on
gender for human development Women are entitled to enjoy economic,
social, cultural and political rights without discrimination and on footing of G
equality. Equally, in order to effectuate fundamental duty to develop
scientific temper, humanism and the spirit of enquiry and to strive towards
excellence in all spheres of individual and collective activities as enjoined
in article 51A(h) and G) of the constitution of India, not only facilities and
opportunities are to be provided for, but also all forms of gender based
discrimination should be eliminated_ It is a mandate to the State to do these H
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456
SUPREME COURT REPORTS 119961 SUPP. l S.C.R.
acts. Property is one of the important endo\vment~ or natural assets to
accord opportunity, source to develop personality, lo be independent. righ1
to equal statm and dignity of person. Therefore, the Stale should create
conditions. and facilities conducive for \\'Omen to realise the right to
economic development including social and cultural rights.
Bharat Ratna Dr. B.R. Ambcdkar slated, on the lloor of the Constituent Assembly that in future both the legislature and the executive
should not pay mere lip service to the directive principles but they should
be made the bastion of all executive and legislative action. Legislative and
executive actions must be conformable to, and effectuation of the funC damental rights guaranteed in Parl Ill and the directive principles
enshrined in part IV and the Preamble of the Constitution which constitute
conscience of the Constitution. Covenants of the United Nation add imD
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pctus and urgency to eliminate gender based obstacles and discrimination.
Legislative action should be devised suitably to constitute economic empowerment of women in socio~economic restructure for establishing
egalitarian social order. Law is an instrument of social change as well as
the defender for social change. Article 2(e) of CEDAW enjoins this Court
to breath life into the dry bones of the Constitution, international Conventions and the Protection of Human Rights Act, to prevent gender based
discrimination and to effectuate rights Act to life including empowerment
of economic, social and cultural rights.
As per the U.N. Report 1980 "woman constitute half the world
population, perform nearly two thirds of work hours, receive one tenth of
the world's income and own less than one hundredth per cent of world's
property". Half of the Indian population loo are women. Women have
always been discriminated and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude
and yet they have been subjected to all inequities, indignities, inequality
and discrimination. Articles 13, 14, 15 and 16 of Constitution of lndia and
other related articles prohibit discrimina6on on the ground of sex. Social
and economic democracy is the cornerstone for success of political
democracy. The Scheduled Castes, Scheduled Tribes and women, from
time immemorial, suffered discrimination and social inequalities and made
them to accept their ascribed social status. Among women, the tribal
women are the lowest of the low. It is mandatory, therefore, to render them
H socio-economic justice so as to ensure their dignity of person, so that they
MADHU KISHWAR v. STATE [K. RAMASWAMY,].]
457
be brought into the mainstream of the national life. We are conscious that A
in Article 25 which defines Hindus, Scheduled Tribes were not brought
within its fold to protect their customs and identity. We keep it at the back
of our mind.
Agricultural land is the foundation of ·a sense of ~ecurity and freedo1n
from fear. Assured possession is a lasting road for development, intellectual, cultural and moral and also for peace and harmony. Agriculture is the
only sources of livelihood for the tribes, apart from collection and sale of
minor forest produce. Land is their most important natural asset and
imperishable endowment from which the tribals derive their sustenance,
social status, a permanent place of abode and work. The Scheduled Tribes
predominantly live in Andhra Pradesh, Maharashtra, Bihar, Gujarat, Orissa, Madhya Pradesh, Rajasthan and North Eastern States, though they
spread to other States sparsely.
B
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The empirical study by Anthropologists and Sociologists reveals that D
the customary laws of the tribes are not uniform throughout Bharat. Even
in respect of intestate succession, they are not uniform. Though the customs of the tribes have been elevated to the status of law, obviously
recognised by the founding fathers in Article 13(3)( a) of the Constitution,
yet it is essential that the customs
inconsistent with or repugnant to
constitutional scheme must always yield place to fundamental rights. In E
Sant Ram v. Labh Singh, [1965] 7 SCR 756, this Court held that the custom
as such i~ effected by Part Ill dealing with fundamental rights. In Balm
Ram v. Baijnath Singh, [1962] Supp. 3 SCR 724, it was held that law of
pre-emptiOn based on vicinage is void. In G. Dasaratha Rania Rao v. State
of A.P., [1961] 2 SCR 931, this Court held that discrimination based on the
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ground of descent only offends Article 16(2).
In India agricultural land forms the bulk of the property. In most of
the tenancy laws, women have been denied the right to succession to
agricultural lands. The discernible reason''in support thereof appears to be
. to maintain unity of the family and to prevent fragmentation of agricultural
holdings
or diversion of tenancy right. In Atma Prakash v. State of
Ha1yana, [1986] 2 SCC 249, testing the validity of Section 15 of the Punjab
Pre-emption Act, 1930, for the aforesaid reasons, this Court held that the
right of pre-emption based on consanguinity is a relic of the feudal past. It
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is totally inconsistent with the constitutional scheme. It is inconsistent with H
458
SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A
modern ideas.