After the year 1956 succession amongst Hindus shall be governed by the Hindu Succession Act

>>> The High Court’s rose to the discriminating practices and delivered trans-formative ruling giving land inheritance rights to tribal women and thus provided a cause to celebrate.

High Court judgment changes the legal status of tribal women. In one stroke the high court has thrashed polyandry, polygamy, bigamy…………………’Joridara’ system,...................

>>> Background:

Constitution provides for protection of tribal indigenous communities and their customs through Articles 244, 244-A, 371-A, and the Fifth and Sixth Schedules. Because the customary law ( purported to be prevailing customary law), recorded almost a century back by the British) in revenue related documents like Riwaj -I-Am (common tradition) or Wajib ul Arz denies daughters and wives the right to inherit property, and professes only males are allowed to inherit ancestral property and bars women from such rights. The brothers, male members/relatives, often ill treat their unmarried sisters after the death of the parents. Then in certain regions, the law of primogeniture, which gives the right of inheritance only to the firstborn male child, deprived the rest of the male siblings of their legal right to property. In the absence of an heir, inheritance passed to collateral relatives — usually male, in order of seniority. …………… Earlier, the security of women in tribal society was taken care of by a unique custom. The father-in-law pledged a part of the land and house to the daughter-in-law in writing .The paper was kept with the father of the bride. In case of a dispute with the husband, the bride would get the pledged share. Meanwhile, while this traditional custom that somewhat helped secure a woman’s future, the discriminatory custom that daughter or wives cannot inherit property continues unabated, Polyandry was practiced in certain places/tribes like upper Himalayas. The practice of polyandry by the major tribes too was a result of limited land and resources. Several brothers married a single woman to avoid division of land, which resulted in the single status of several women since they did not get married. ………..  

While cases of polyandry are rare now, women continue to suffer from the discriminatory law that bars them from inheriting property…………….. It is the deserted, widowed and unmarried women who suffer the most as they have to live at the mercy of others…………………………… Picture changes when several women (that became aware and active) traveled to seat of governments presented a memorandum to the State Governor demanding that this tribal law be scrapped but nothing happened. The women planned to pursue the matter both at the State as well as Centre level and take their agitation to Delhi.   

>>> Indian courts recognize custom as law only if the custom is “ancient or immemorial” in origin; “reasonable in nature and continuous in use”, and “certain”. Courts interpret “ancient or immemorial" to mean that for a custom to be binding. it “must derive its force from the fact that by long usage it has obtained force of law”.

>>> IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

RSA No.39 of 2002 Alongwith Cross Objections No.129 of 2002.

Date of Decision: 19:10:2011.

Baan Singh and Others Vs. Devi Ram and Others  http://164.100.138.228/casest/generatenew.php?path=data/judgment/2013old/&fname=RSA392002.pdf&smflag=N

2………………….They claimed that in accordance with the custom in ‘joridara’ system it is the joridar brothers who inherit the estate of the deceased and the estate is not succeeded according to the provisions of the Hindu Succession Act.

3. The learned trial Court held that the custom stood abrogated after coming into force the Hindu Succession Act, 1956 and since admittedly the so called marriage with Dharmi had taken place after 1969, there could be no valid polyandrous marriage’.

6. This appeal was admitted on the following question of law: “Whether Mohi Ram, deceased constituted ‘Joridara” with Ghassi Ram, Telu Ram and on the death of Mohi Ram, his property will be inherited by whom?”

8. To understand the question, it would be appropriate to refer to the ‘joridara’ system. This custom was a mixture of both polygamy and polyandry. Under this Joridari system the eldest brother amongst the brothers was the pivot and the woman who was brought into the house in a marriage ceremony became the wife of all the brothers who joined him or associated with him.

9…………………local customs governed the field and the ordinary Mitakshara School of Law did not govern inheritance or succession between the parties. 1. This Court has dealt in detail with the............. Joridari system in Partap Singh vs. Guman Singh and another, Latest HLJ 2010 (HP) 857,.............  and it is not necessary to go into the entire concept of Joridari system.

In the aforesaid case, this Court clearly held that after the coming into force the Hindu Succession Act, 1956, by virtue of Section 4 of the Act, any text, rule or interpretation of Hindu law or custom or usage being part of the law immediately before the commencement of the Act shall cease to have effect in respect of the matters governed by the Act. It was clearly held that after the year 1956 succession amongst Hindus shall be governed by the Hindu Succession Act and not by custom.