Supreme Court of India

MADHU KISHWAR AND ORS. ETC.versusSTATE OF BIHAR AND ORS.

Citation: 1996 INSC 489
Decided: 7 April 1996
Disposal: Disposed off
Bench: KULDIP SINGH

Holding

Sections 7, 8 and 76 of the Chota Nagpur Tenancy Act are constitutionally valid, but the phrase "male descendants" must be interpreted to include female descendants, thereby protecting the livelihood rights of tribal women.

Summary

The petitioners, tribal women from Bihar, challenged Sections 7, 8 and 76 of the Chota Nagpur Tenancy Act, 1908 as discriminatory against women and violative of Articles 14, 15 and 21 of the Constitution. The Court examined whether the Hindu Succession Act, 1956 and the Indian Succession Act, 1925 applied to Scheduled Tribes and whether tribal customs excluding women from inheritance could be struck down. It held that the Acts do not apply to tribal customs, but the right to livelihood of female dependents can intervene in the male‑only succession scheme. By reading down the words "male descendants" to include females, the Court provided a limited constitutional remedy for female dependents while refraining from striking down the statutes. The writ petitions were disposed of, the interim protection for the women was made absolute, and the State was directed to consider amending the law.

Issues considered

Whether the Hindu Succession Act, 1956 and the Indian Succession Act, 1925 apply to Scheduled Tribes in Bihar.
Whether the tribal customs that exclude women from inheritance violate Articles 14, 15 and 21 of the Constitution.
Whether Sections 7, 8 and 76 of the Chota Nagpur Tenancy Act, 1908 are ultra vires the Constitution.
Whether the phrase "male descendants" in Sections 7 and 8 can be read down to include female descendants.

Legislation cited

Chota Nagpur Tenancy Act, 1908s. 7, s. 76, s. 8
General Clauses Acts. 13
Hindu Succession Act, 1956s. 3(2)
Indian Succession Act, 1925s. 3

Subjects

tribal successiongender discriminationArticle 14Article 15Article 21right to livelihoodChota Nagpur Tenancy ActHindu Succession Actcustomary lawland rights

Judgment

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 custom-
C 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-Ex-
clusive 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-Constitu-
tional right to livelihood of females-Intervening rights uf female depend-
ents/descendants.

Constitution of India-Articles 14, 15, 21-Tnbals--Custom of intestate
succession-Whether violative of A1t. 14, 15, 21-Held, No.
E
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
F
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
G
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
D
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 differen-
tial treatment, not necessarily equal. Non-uniformities would not in all
events violate Article 14. Judge- made amendments to provisions, over and E
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 F
to the problem be found. [477-G-H; 482-G)

1.4. Traditionally and historically, the agricultural family is iden-
tified by the male head and this is what Sections 7 and 8 recognise. But on
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
the males in the line of descent take over the holding exclusively. The
B 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 depend-
ents/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/descen-
dants 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 recom-
mending 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
Bihar is concerned. [484-G-H; 485-A-G]

Jitmuhwi Singh Munda v. Ramrata11 Si11gh a11d A11vther, (1958) Bihar
law Journal Reports 373, distinguished
G
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
B
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
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 inter- E
preted 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 F
applicable to them and subject to the conditions mentioned therein. Jn case
the tribal woman intends to alienate the land, subject to obtaining ap-
propriate permission from the competent authority under the appropriate
Act, she should first offer the land for sale to the brother or in his absence
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]

13. By operation of Section 13(1) of General Clauses Act, males
B 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, mar-
ried 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]

Ramalaxmi Ammal v. Shivanadha Penunal Sheroyar, (1872) 14 Moors
E 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
F 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. Ad-
ministrat01; 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 Succes-
sion; 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.
E
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) F
No. 5723/82.

Pramod Swarup, Praveen Swarup and Ms. Kamini .Jaiswal (NP) for
the Respondent in W.P. (C) No. 219/86.

The Judgment of the Court was delivered by G

K. RAMASWAMY, JJ. These two writ petitions raise common ques-
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 dis-
crimination 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
E
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 F
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
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 H
450 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A 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
B 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
c 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
D 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 -

E (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
F 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:
G
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.

H (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 - B

(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) as regards any portions of such land which have remained C
continuously in the possession of any such Mundari and his des-
cendants 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 in- H
452 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A 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
B 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
c 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 in-
dividuals 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.

E 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
F
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.

G 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 in-
divisible part of universal human rights. The full development of per-
sonality and fundamental freedoms and equal participation by women in
political, social, economic and cultural life are concomitants for national E
development, social and family stability and growth, culturally, socially and
economically. All forms of discrimination on grounds of gender is violative
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 Govern- F
ment of India who was an active participant to CED AW ratified it on June
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
454 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A towards the promotion of equality between men· and women etc. Article 1
defines discrimination against women to mean 11 any 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,
B 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 dis-
c criminations 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
E 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
F economic survival of their families including their work in the non-
monetized 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 ob-
tain equal access to economic opportunities through employment or self-
G 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 A
in India". Thereby the principles embodied in CEDAW and Lhe con-
comilanl Right to Development became integral parts of the Indian Con-
stitution 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
B
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 under-
taken under Articles 3, 14 and 15 of the Convention vis-a-vis Articles 1, 3, c
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
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.
E
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
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
456 SUPREME COURT REPORTS 119961 SUPP. l S.C.R.

A 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.

B Bharat Ratna Dr. B.R. Ambcdkar slated, on the lloor of the Con-
stituent 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 fun-
C 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 im-
pctus and urgency to eliminate gender based obstacles and discrimination.
Legislative action should be devised suitably to constitute economic em-
powerment of women in socio~economic restructure for establishing
D
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 Conven-
tions and the Protection of Human Rights Act, to prevent gender based
discrimination and to effectuate rights Act to life including empowerment
E 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
F property". Half of the Indian population loo are women. Women have
always been discriminated and have suffered and are suffering discrimina-
tion 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
G 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, intellec-
B
tual, 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 c
predominantly live in Andhra Pradesh, Maharashtra, Bihar, Gujarat, Oris-
sa, Madhya Pradesh, Rajasthan and North Eastern States, though they
spread to other States sparsely.

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 cus-
toms 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 F
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 G
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
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. The reasons which justified its recognition, quarter of a
century ago, namely, the preservation of the integrity of rural society, the
unity of family life and the agnatic theory of succession, are today ir-
relevant. Classification on the basis of unity and integrity of either the
village community or the family or on the basis of the agnatic theory of
succession, cannot be upheld. Due to march of history the tribal loyalties
B
have disappeared and family lies have been weakened or broken and the
traditional rural family oriented society is permissible. Accordingly Section
15(1), clauses (1) to (3), violates fundamental rights and were declared
ultra vires.

C When male member has the right to seek partition and at his behest,
fragmentation of family holding is effected, why not the right to in-
heritance/succession be given to a female? On agnatic theory, she gets a
shadow, but not substance. Right to equality and social justice is an illusion.
The denial is absolutely inconsistent with public policy, unfair, unjust and
D unconscionable. The reason of fragmentation of holding or division of
tenancy right would hardly be a ground to discriminate against a woman
from her right to inherit the property of the parent or husband. In V.
Tulasamma v. Sesha Reddy, AIR (1977) SC 1944 at 1961, this Court,
cognizant to equality i11 intestate succession by Hindu woman, held that
after the advent to independence old human values assumed new complex;
E women need emancipation; new social order need to be set up giving
women equality and place of honour, abolition of discrimination based on
equal right to succession is the prime need of the hour and temper of the
times. In Cl1ira11jeet Lal v. Unio11 of India, [1950] SCR 869, this Court held
that the guarantee against the denial of equal protection of the law does
F not mean that identically the same rule of law should be made applicable
to all persons within the territory of India in spite of difference in cir-
cumstances or conditions. It means that there should be no discrimination
between one person and another. It is with regard lo the subject matter of
the legislation. Jn State of West Bengal v.A11war Ali Sarkar, [1952] SCR 869,
it was held that the prohibition under Article 14 is to secure all persons
G against arbitrary laws as well as arbitrary application of laws. It applies to
procedural and substantive law. Me11aka Gandhi v. U11ion of India, (1978]
2 SCR 621, reiterates .its creed on grounds of justice, eqnity and fairness
lest law becomes void, oppressive, unjust and unfair. ,._

H Eugine Smith in his Indian Constitution has stated that secularisation
. MADHUKISHWARv.STATE[KRAMASWAMY,J.] 49

of law is essential lo the emergence of modern Indian State, foundation of A
which stands on twin principles of democracy and secularism. He further
stated that "the existence of different personal law contradicts the prin-
ciples of non-discrimination by the Stale". Non-discrimination is based on
the philosophy of the individual, not the group, as the focal point and the
hasic unit of the nation. The civilisation, culture, custom, usage, religion
B
and law are founded upon the community life for man's well being. The
man will obey the command of the community by consent. The law formu-
lates the principals to maintain the order in the society to avoid friction.
Democracy brings about bloodless revolution in the social order through
rule of law. Therefore, when women are discriminated only on the ground
of sex in the matter of intestate succession to the estate of the parent or c
husband, the basis question is whether it is founded on intelligible diffcren-
tia and bears reasonable or rational relation or whether the discri1nination
is just and fair. Our answer is no and emphatically no.

In State of Bihm· v. Kameswar Singh, (1952] SCR 889, this Court had D
held that in judging the reasonableness in irnposing restri<.:tions Court
would take into consideration public purpose in Article 39. Jn Kastwi Devi
v. State of Kamataka, (1980] 4 SCC 1, this Court held that if law is made
to further socio-economic justice it is pri111a facie reasonable and in public
interest. In other words, if it i.s in negation, it is unconstitutional. In
Chandra Bhagvan Boarding House v. State of Mysore, [1970] 2 SCR 600, it E
was held that "the mandate of the Constitution is to build a welfare society
and aspirations aroused by the Constitution will be belied if the minimum
needs of the lowest of our citizen are not met". In Narendar Prasad v. State
of Gujarat, [1975] 2 SCR 317, it was held that no right in an organised
society can be absolute. Enjoyment of one's rights must be consistent with F
the enjoyment of the rights of others. In a free play of social forces, it is
not possible to bring about a voluntary harmony; the State has to step in
to set right the imbalance and the directive principles, though not enforce-
able; mandate of Article 38, to restructure social and economic democracy,
enjoins to eliminate obstac]es and prohibit discrimination in intestate suc-
cession based on sex. G

In 17wta Sesharathamma v. 77wta Manikyamma,, .IT (1991) 3 SC 506,
construing Section 14 of the Hindu Succession Act 1956 and its revolution-
ary effect on the right to ownership of the land by Hindu woman, this Court
held that the validity of Section 14(1) drawn from the pre-existing limited H
460 SUPREME COURT REPORTS [1996j SUPP. 1 S.C.R.

A estate held by a Hindu woman must be tested on the anvil of socio-
economic justice, equality of status and by overseeing whether it would
sub-serve the constitutional animation. Article 15(3) relieves the State from
the bondage of Articles 14 and 15(1) and charges it to make special
provision to accord socio-economic equality to woman.

B The Hindu Succession Act revolutionised the status of a Hindu
female and used Section 1 4(1) as a tool to undo past injustice to elevate
her to equal status with dignity of person on par with man and removed
all fetters of Hindu woman's limited estate whicb blossomed into full
..
ownership. By legislative fiat the discrimination in intestate succession
C meted out to woman was done away with. The Court should, therefore,
endeavour to find out whether the disposition clauses in the instrument will
elongate the animation of Section 14 and would permeate the aforestated
constitutional conscience to.relieve the Hindu female from the Sashtric
bondage of limited estate. Articles 14, 15 and 16 frown upon discrimination
D on any ground and enjoin the State to make special provisions in favour of
the woman to remedy past injustice and to advance their socio-economic
and political status. Economic necessity is not a sanctuary to abuse
woman's person. Section 14, therefore, gives to every Hindu woman full
ownership of the property irrespective of the time when the acquisition was
made, namely, whether it was before or after the Act had come into force,
E provided, she was in possession of the property. Discrimination on the
ground of sex in matters of public employment was buried fathom deep
and is now a relic of the past by decisions of this Court. In C.B. Methamma
v. Union of India, [1980] 1 SCR 668, Air India v. Nagesh Mi1za, [1982] 1
SCR 438, and a host of other decisions are in that path. True that clauses
F (h) and U) of 'para 3 of Schedule 6 of the Constitution give power to
District or Regional Councils in North Eastern States to alter law relating
to inheritance and customs; they too are bound by the law declared under
Article 141 of the Constitution to be consistent with Articles 15(3), 14 and
Preamble of the Constitution.

G The public policy and constitutional philosophy envisaged under
Articles 38, 39, 46 and 15(1) & (3) and 14 is to accord social and economic
democracy to women as assured in the preamble of the Constitution. They
constitute core foundation for economic empowerment and social justice
to women for stability of political democracy. In other words, they frown
H upon gender discrimination and aim at elimination of obstacles to enjoy
MADHU KISHWAR v. STATE [K. RAMASWAMY,J.] 461

social, economic, political and cult,ural rights on equal footing. Law is a A
living organism and its utility depends on its vitality and ability to serve as
sustaining pillar of society. Contours of law in an evolving society must
rnnstantly keep changing as civilization and culture advances. The customs
and mores must undergo change with march of time. Justice to the in-
dividual is one of the highest interests of the democratic State. Judiciary
B
cannot protect the interests of the common man unless it would redefine
the protections of the Constitution and the common law. If law is to adapt
itself to the needs of the changing society, it must be flexible and adaptable.

Law is the manifestation of principles of justice, equity and good
conscience. Rule of law should establish a uniform pattern for harmonious c
existence in a society where every individual would exercise his rights to
his best advantage to achieve excellence, subject to protective discrimina-
tion. The best advantage of one person could be the worst disadvantage to
another. Law steps in to iron out such creases and ensures equality of
protection to individuals as well as group liberties. Man's status is a D
creature of substantive as well as procedural law to which legal incidents
would attach. Justice, equality and fraternity are trinity for social and
economic equality. Therefore, la\V is a foundation on which the potential
of the society stands. In Sheiknyammada Nat/a Kaya v. Administratm;
Union Tenitmy of Laccadives, AIR (1967) Kerala 259, K.K. Mathew, J., as
he then was, held that customs which arc immoral are opposed to public E
policy, can neither be recognised nor be enforced. Its angulation and
perspectives were stated by the learned Judge thus:

"It is admitted that the custom mllst not be unreasonable or F
opposed to public policy. But the question is unreasonable to
whom? ls a custom which appears unreasonable to the Judge be
adjudged so or should he be guided by the prevailing public
opinion of the community in the place where the custom prevails?
It has been said that the Judge should not consult his own stand-
ards or predilections but those of the dominant opinion at the given G
moment, and that in arriving at the dectsion, the Judge should
consider the social consequences of the custom especially in the
light of the factual evidence available as to its probable consequen-
ces. A judge may not set himself in opposition to a custom which
is fully accepted by the community. H
,

462 SUPREME COURT REPORTS [1996] SllPP. 1 S.C.R.

A But I think, that the .l udge should not follow merely the mass
opinion when it is clearly in error, but on the contrary he should
direct it, not by laying down his own personal and isolated con-
ceptions but by resting upon the opinion of the healthy elements
of the population, whose guardians of an ancient tradition, which
has proved itself, and which serves to inspire not only those of a
B conservative spirit but also those who desire in a loyal and disin-
terested spirit to make radical alterations to the organisations of
existing society. Thus, the judge is not bound to heed even to the
clearly held opinion of the greater majority of the community if he
is satisfied that opinion is abhorrent to right thinking people. In
c other words, the judge would consult not his personal inclinations
but the sense and needs and the mores of the community in a spirit
of impartiality."

As in other parts of the country, in Bihar, most of the tribes like
D Munda, Oraom and Ho practised shifting cultivation along with the settled
cultivation as it has not been popular with the tribe to combine various
modern productive technology. But, by passage of time, when the land has
become scarce, they too have settled down to ploughing cultivation on fixed
tenures. Due to diverse reasons which it is not necessary for the purpose
of this case to elaborate, major part of the land slipped out from their
E holdings.

Notable researchers, who spent their valuable time living among the
tribals, are W.G. Archer, Dy. Commissioner, Santhal Pargana during 1939-
40, Prof. Christopher Von Furer-Haimendorf, a German Sociologist ap-
F pointed by Nizam of Hyderabad in 1940 who spent his life with the tribals
in Nizam State in Andhra Pradesh as well as Arunachal Pradesh. Portrayed
life style and custo1ns operating among the Tribals, Haimendorf says in his
"Tribes in India, the Struggle for Sun"val" that Chcnchoo women, tribals
in Andhra Pradesh, enjoy equal status with men. They can own property,
but they cannot inherit any substantial property. They abide by the decision
G of their husbands. They are equal companions with men doing as much, if
not more, of the work in maintaining the common household. She and her
husband, are joint possessors of the family property insofar as it is acquired
by tl1e daily labour. Jn South India, in particular Andhra Pradesh, after the
grant of ryotwari pattas to the tillers of the soil including the tribes, they
H acquire permanent right to fixed land holdings and there does not exist any
MAD HU KJSHWAR v. STATE [K. RAMASWAMY, J.j 463

discrimination in matter of intestate succession between man and \VOman. A
"Issues in Tribal Development" by Prof P. Ramaiah of Kakatiya University,
Andhra Ptadesh, at page 9 it is stated that "hereditary rights rule the
property distribution arrangements. If a man dies, his wife and sons get
equal share of the property. Widow gets her husband's share from the
property". At page 14 he has further stated, "land is a part of his spiritual
B
as well as economic heritage. 11

Dr. L.P. Vidyarthi in his Tribal Development Act and Its Administra-
tion, published by Concept Publishing Co., (1986 Edn.), has stated at page
310 that the element of certainty and definiteness of customs in the tribal
society is lacking because of divergent customs on the same issue adopted C
by different sections of the tribes. The element of antiquity is also of little
aid in that behalf. In Tribal Society, custom is generally a product of
dominating mind, nurtured in the belief of super-natural forces and taboos
than a source of spontaneous growth. It is mostly based upon the totem
and taboos evolved in a particular family having the force of the family law. D
The custom in the tribal society is much influenced by the instinct of
possessive authority and not on the basis of sociological origin but it has
been carried, generation after generation, as being the family la\v. No
scientific explanations are available, but if the custom is examined in detail
it is found deep rooted in the element of totem and taboos. That is the
reason that majority of the customs prevailing in the tribal society could E
not attain the status of law and there is no legal validity except in the cases
of inheritance and some family laws like adoption and marriage. If the
working and life of the tribal societies is minutely observed, it will be found
that from morning till night, with the birth of a baby till death, agricultural
operations are the sole occupation for livelihood; all are lagged, linked and F
based upon certain conduct and behaviour reflecting, nearly custom and
it may be said that entire tribal society is based upon the rib>id rules of
custom and any society still untouched by the inOuence of urbanisation
exists in the phenon1enon of religion mixed \Vith 1nagic custo111.

Archer in his "Tribal Law and Justice - The Santhal View of Woman" G
has stated in 1939-40 that the unmarried daughter has ordinarily no right
at all in land. She cannot ask for partition and if her brothers separate,
some land may be kept by her father or brother for financing her marriage
and maintaining her, but that is to fulfill their duties towards her and does
not confer upon her any rights. At the partition, she is given no share. She H
464 SUPREME COURT REPORTS [1996] SUPP. l S.C.R.

A has a right to maintenance. If her father or brothers or father's agnates are
against discharging their dutief., she can claim enough land for keeping her
till marriage. She can acquire the land of her own which is her absolute
property. If her father dies leaving no other heirs or agnates, she will get
his land until she is married. If she is married, her sisters will share equally
with her. If she has no sisters, the property goes to the village community.
B
With regarcl to married daughters, he stated, that two lo three bighas of
land would be given as "Stridhan" at the time of marriage. In respect of
that property, right of the father, brother or agnates are extinguished. The
property given is her absolute property. Her children inherit her property.
In their absence, it passes on to the father, brother, mother or her male
c agnates. With regard to the right of married woman, at page 156, he has
stated that at partition the wife and children get one share and the husband
gets one share. He has given instances of one Safa! Handsdeak of Tharia.
With regard to the right to the widow, she is like a Hindu widow having
right to maintenance. If her husband died while he was joint holder with
D his brothers she will continue to live in the family and the situation will not
differ materially from what it was in her husband's lifetime. Her right to
maintenance will continue and if her husband's family neglects her without
cause, she can demand sufficient land to keep herself. If there is a complete
family partition the widow and her children will get the share which would
have gone to her husband had he been alive. She gets life estate like Hindu
E widow's estate, "The Mundras and their Courts" by Sarad Chandra Roy,
14th Ed. at p.244 to 451 (1915). The Origins of Chotanagpur by Sarad
Chandra Roy at p.369 to 370 (1915 Ed.) dealt with inheritance on the same
lines. So they need no reiteration.

F In Doman Salm v. Buka, AIR (1931) Patna 198, though Mundas and
Mundari women in Ranchi District are akin to other tribals, since they
regard themselves as Hindus, it was held that Hindu law of succession
would apply to them. In Ganesh Matha v. Shib Charan, AIR (1931) Patna
305, Kurmi Mahtons of Chota Nagpur adopted Hindu religion. The
Division Bench held that it must be prernmcd that ordinarily they are
G governed by Hindu law in matters of inheritance and succession except
insofar as parties prove any custom obtaining among them which is at
variance with it. It was held that Mitakshara Hindu law of succession was
applicable to them. They did not prove any special custom alleged by them.
In "Law Enforcement in Tribal Areas" by S.K. Ghosh, Director, Law
H Institute, Calcutta, published by Ashish Publishing House at page 89 it is
MADHU KISHWAR v. STATE [K. RAMASWAMY,J.] 465

stated that though the Hindu Succession Act 1956, Hindu Marriage Act A
1954, Hindu Adoption and Maintenance Act 1956 did not apply, "because
of their contacts with other advanced societie-s some changes have taken
place among tribes in the observance of marriage, divorce, etc. In the event
of any litigation, the tribal courts are unable to reach a definite conclusion
as these customary codes as they are unwritten code. Therefore, it was
B
recommended that a proper study uf customary codes of the lribals should
be made and the same may be codified property." "Some State governments
have already action to codify the personal laws of important tribal groups.
These laws can be gradually dispensed with or repealed when the tribals
are fully assimilated with the main body of our national community." At
pages 90-91 he explained the customs, among the Bhils living in Madhya c
Pradesh and Rajasthan who constitute largest tribal group in the country,
of a marriage by elopement" or capture or by arrangement. They are very
truthful people and they do not hesitate to speak agaiust the culprits,
though they may happen to be kith and kin.
D
The Garns, the Khasis and the .Jaintias are the main inhabitants of
Meghalaya State. They observe monogamy. The daughter (Nokma Dongipa
Mechik) descendant from the ancestor is chosen for marriage for common
ancestors. The husband goes and lives with the wife which in Hindu law
known as Illatom son-in-law. The custom is that the senior-most household
of the area maintains a line of inheritance from the mother to the chosen E
daughter and the husband of the inheritress mother, popularly known as
Nokma is accepted as the constitutional head of the A'Khing. The lands
are held in common ownership of the machong, the usufruct rights are
granted to all the residents of the A'Khing. Mikirs, a populous tribe in
Meghalaya is patrilincal. The sons inherit property and it is divided among F
them. In the absence of male heirs, the nearest agnate inherits that land.
The daughters have been excluded. In the absence of sons and brothers,
the \vido\v retains the properly provided she inarries one of her husband's
dan. The Gonds in Andhra Pradesh, Madhya Pradesh, Bihar and Orissa
observe monogamy. At page 139, he has slated that the custom is heritable G
and transferable and right of inheritance is patrilineal. The male heirs
would succeed and tbe females are completely excluded. The sons take
equal shares, but among the Apa Tanis and the Nactes, the system of
primogeniture prevails, i.e . .the eldest son only inherits the father's landed
property which has been softened among Apa Tanis. In Manipur, the
custom among Thandon Kukis is that the property is of the Chief of the H
466 SUPREME COURT REPORTS (1996] SUPP. l S.C.R.

A village. The practice is of shifting cultivation and the Chief distributes the
plots among the groups. The system of inheritance among the Naga groups
is that al the death of the last owner, the succession is by patrilineal and
the rules of primogeniture prevails among them. The practice is that during
his life-time the father gives some land to the younger brother as well.

B In a report on Cmlification of Customary Laws and Inheritance Laws
in the Tribal Societies of Orissa by Dr. Bhupinder Singh and Dr. Neeti
Mahanti of .ligyansu Tribal Research Centre, sponsored by the Ministry of
Welfare, Government of India and submitted on May 19, 1993, it is stated
at page 1 in last paragraph of his preface that to reduce tribal customary
c laws into formal, technical, straight-jacket frame is likely to rob it of its
vitality and strength. It will expose the innocent, gullible tribals to the
machinatiun.s of touts, middle-men etc. The cu.stoms which differ, in
whatever magnitude, from one community to other would help exploitation
of the tribals by application of the traditional law. lls relevance, freshness
and vitality to a considerable extent, would get weakened. Whims and
D fancies in dispensation of justice would be avoided. They concluded that
"we must proceed deliberately and wirely." In chapter III at page 8 it is
staled thus :

11
Custumary law refers to rules that are transmitted from
E generation to generation through social inheritance. In a close-knit
simple tribal society, the people themselves want to live according
to customs backed by social sanctions; to save them from objection
and social ridicule of the society."

F At page 9, it is stated that "the major areas of interest for a tribal
co1nn1unity is inhi:ritancc of land, forest rights and social custon1s like
n1arriage divorce, desertion, child support, death, birth etc.n Santhals, one
1

l>f the largest tribt.:s of India Spread ()ver West Bengal, Orissa, Bihar and
parts of Assam and Tripura. It is observed at page 30 on the 'Chapter
Succession to Property1' that the succession is in favour of the son, in his
G ab,ence to the daughter, in their ab,ence to the relative. Even among
Santhals, it is not strictly patrilcneal. If they have no son, succession is open
to the daughter and if they have neither son nor daughter then lo the
relative of the family. Some people among them preferred succession
among son and daughter equally. On husband's demise, the widow gets a
H share in the property, as life-estate. In their conclusion at page 37, they
MAD HU KISHWAR v. STATE [K. RAMASWAMY, J.] 467

have stated that the Santhals and Saora tribals practice patrilineal as a A
mode of succession. At pages 38-43, after detailed discussion it is stated
that though there is considerable "on-going acculturation process", the
tribes have not completely discarded the customs. At page 45, it was
mentioned that though Santhal society is predominantly patrilineal, they do
not strictly adhere to it. The inheritance in favour of the daughter has been
B
softened but Saora society is conservative and Jess exposed to winds of
change. They preferred sons to daughters only if there is no son in the
family and other relatives of the family. However, the widow inherits the
estate of her husband. The working group of the 7th Five Year Plan on the
tribal development recommended codification of customary laws prevalent
among the tribals in its report at pages 323-24 of the Planning Commission c
documents. Dr. B.L. Maharde, a bureaucrat of Rajasthan Civil Services, in
his "history and Culture of Girjans" in the State of Rajasthan, narrated the
practices of tribals at page 84 stating that the property after the death of
the father is equally divided among the sons by the village elders of
Panchayat and in case of dispute, by the private Panchayat. The youngest D
son, since he lives with his father, is entitled to have an extra share. The
grandson of his pre-deceased son is entitled to an equal share. Daughters
are not. entitled to inherit their fathers' property but they can share the
animal wealth. The son-in-law is entitled to equal share. The widow has
right to property which she loses on her remarriage. We do not get any
material as regards succession among the tribals in Madhya Pradesh, E
Maharashtra and Gujarat and in view of the general trend we assume that
in those States also patrilineal succession would be in vogue.

It would thus be seen that the customs among the Scheduled Tribes,
vary from tribe to tribe and region to region, based upon the established F
practice prevailing in the respective regions and among particular tribes.
Therefore, it would be difficult to decide, without acceptable material
an1ong each tribe, \Vhether customary succession is valid, certain, ancient
and consistent and whether it has acquired the status of law. However, as
noticed above, customs are prevalent and being followed among the tribes
in matters of succession and inheritance apart from other customs like G
marriage, divorce etc. Customs became part of the tribal Jaws 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. Ti.ey have accordingly nearly acquired the status of law.
Except in Meghalaya, throughout the country patrilineal succession is being H
468 SUPREME COURT REPORTS [1996] SUPP.1 S.C.R.

A followed according to the unwritten code of customs. Like in Hindu law,
they prefer son to the daughter and in his absence daughter succeeds to
the estate dS limited owner. Widow also gets only limited estate. More than
80 per cent of the population is still below poverty line and they did not
come at par with civilized sections of the non-tribak Under these cir-
cumstances, it is not desirable to grant general declaration that the custom
B of inheritance offends Articles 14, 15 and 21 of the Constitution. Each case
must be examined and decided as and when full facts are placed before
the Court.

Section 2(2) of the Hindu Succession Act, similar to Hindu Marriage
c Act, Hindu Adoption and Maintenance Act, excludes applicability of
customs to the Scheduled Tribes as defined by clause (25) of Article 366
of the Constitution unless the Central Government, by notification in the
official Gazette otherwise directs. Explanation 11 to Article 25 does not
include them as Hindus. The Chotanagpur Tenancy Act and the Santhal
D Parganas Tenancy (Supplementary Provisions) Act, 1949, the Bihar
Scheduled Areas Regulation, 1969 intend to protect the lands of the tribals
and their restoration to them. Sections 7 and 8 of the Act regulate the right
of Khuntketti Raiyats. By operation of customary inheritance, the son and
lineal descendants inherit the lands held by the tribes for the purpose of
cultivation by himself or male members of his family. Section 76 read with
E Section 6 gives effect to custom, usage or customary right provided there-
under not inconsistent with or not necessarily modified or abolished by the
provisions of the Act. The law exists to serve the needs of the society which
is governed by it. If the law is to play its allotted role of serving the needs
of the society, it must reflect the ideas and ideologies of that society. As
F stated earlier, it must keep pace with march of time with the heart beats
of the society and with the needs and aspirations of the people. As seen,
even among the tribals in Bihar, the customs have no\v undergone advan-
cement. They prefer both son and daughter alike though not uniformly.
Succession is patrilineal; Santhals practically adapted the Mitakashara
Hindu law of succession. The Hindu Succession Act modified the pre-
G existing law and intestate succession gives right of succession to Hindu
female. Section 14(1) has enlarged limited estate known to Sastric law into
absolute right of property held by a female. In the Law of intestate and
Testamentary Succession, (1991) Ed. at page 21, Prof. Diwan has stated
that Section 2(2) does not mean that Scheduled Tribes which were, prior
H to the codified Hindu Law, governed by Hindu law will not, now, be
MADHUKISHWARv. STATE[K.RAMASWAMY,J.J 469

governed by the Hindu law. If before codification, any Scheduled Tribe was A
governed by Hindu law, it will continue to be governed by it. However, it
would be uncodified Hindu law that would apply to them. It is settled law
that the procedural or substantive law which offend the fundamental right
are void. Sections 7 and 8 of the Act exclude woman tribals from in-
heritance to the Khuntkutti raiyati rights solely on the basis of sex and
B
confine succession and inheritance among male descendants only. In
Maneka Gandhi v. Union of India, [1978] 2 SCR 621, this Court held that
reasonableness is an essential element of equality; non-arbitrariness per-
vades Article 14. The Court must consider the direct and inevitable effect
of the action in adjudging whether the State action offends the fundamental
right of the individual. This Court sustained the validity of Passport Act by C
reading down the statutory provisions . .Justice, equity and good conscience
are integral part of equality under Article 14 of the Constitution which is
the genus and Article 15 is its specie. In Harbans Singh v. Guranchatta
Singh, [1991] 1 SCR 614, this Court held that though the Transfer of
Property Act did not per se apply to the State of Punjab at the relevant D
time, the general principles contained th_erein being consistent with justice,
equity and good conscience would apply.

Under the General Clauses Act, male includes female. In Jitmohan
Singh Munda v. Ramratan Singh, (1958) Bihar Law Journal Report 373,
interpreting Mundari Khunt Kattidari widow's right to remain in possession E
of Mundari Khunt Kattidari tenancy, after the death of her husband, the
Bihar High Court held that the widow would have life estate in tenancy
rights as they have adopted Hindu law of succession. There is no reference
whatsoever to the exclusion of the widow of the particular Mundari.
Therefore, in respect of Khunt Kattidari tenancy, the widow would be F
entitled to possession and Section 8 is not inconsistent with that position.
In .Tani Bai v. State of Raja.<than, AIR (1989) Raj. 115, interpreting Rajas-
than Colonisation Act, 1954, the Division Bench held that male descen-
dants would include female descendants and the adult son and the
daughter should be treated alike both being equally eligible for allotment G
under the rules under that Act. By operation of Section 13(1) of General
Clauses Act, males include 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 \vords male descendanls are read to include female descendants,
11 11

the dal•ghter, married or unmarried and the wido\v are entitled to succeed
to the estate of the father, husband or son. Scheduled Tribes are as much H
470 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A citizens as others and are entitled to equality. Sections 7 and 8 accordingly
read down and so on that premise are valid.

The question then is: whether the interpretation is consistent with
Sub-s. (2) of Section 4 of the Hindu Succession Act, 1956? Entry 7 of List
III of Seventh Schedule to the Government of India Act 1.935 provided
B 11
Wills, intestacy and succession save as regards agricultural land. 11 Entry 5
of the Concurrent List in the Seventh Schedule of the Constitution omitted
the words "save as regards agricultural lands" and provided merely ''intes-
tacy and succession; joint family and partition". In Basavani Gouda v. Smt.
Channabasawwa, AIR (1971) Mysore 151, a Division Bench of Mysore
C High Court in paragraph 11 had held that Entry 5 of the Concurrent List
of the Seventh Schedule would apply to succession of agricultural lands
under Hindu Succession Act. It followed the Judgment of Amar Singh v.
Baldev Singh, AIR (1960) Punjab 666 (Full Bench) in its support. The same
view was taken by a Division Bench of the Orissa High Court, in a judgment
D rendered by B. Jugannadha Das, J., as he then was, in Lfil111i Debi v. S.K.
Panda, AIR (1957) Orissa 1.

In Gopi Chand v. Blwgwani Devi, AIR (1964) Punjab 272, a Division
Bench of Punjab High Court had held that Sub-s. (2) of Section 4 of Hindu
Succession Act does not apply to the Delhi Land Reforms Act conferring
E permanent tenancy rights of Bhumidar or asami, laid down in Section 50
of that Act. If it is otherwise, it would be inconsistent with Section 4(1) of
the Hindu Succession Act and would be void. In Phulmani Dibya v. State
of Orissa, AIR (1974) Orissa 135, a Full Bench has held that exclusion of
woman from succession to any Brahmottar grant discriminates against
F woman under Article 15 on ground of sex and that, therefore, became void
offending Article 15(1). In Tokha v. Smt. Saman, AIR (1972) Punjab and
Haryana 406, a single Judge of that Court held that the occupancy rights
held by a limited owner (widow) before the Hindu Succession Act had
come into force, enlarged as absolute property under the Punjab Occupan-
cy Tenants (Vesting of Proprietary Rights) Act and thereby she became an
G absolute owner and was entitled to gift over that land as an absolute owner
which was upheld.

In Mayne's Hindu Law and Usage (13th Ed.), revised by .Justice A.
Kuppuswami, commenting on Sub-section (2) of Section 4 of Hindu Suc-
H cession Act, in paragraph 17 at page 960, it is observed that the legislature
MADHUKISHWARv. STATE[K.RAMASWAMY,.I.] 471

can always provide that the devolution of tenancy rights shall be dependent A·
upon personal law, i.e., Hindu Succession Act. The legislature can also lay
down that in certain circumstances the.re would be one kind of succession
and in different circumstances the holding shall devolve on different per-
sons. Devolution in the case of a Bhumidari under the Uttar Pradesh
Zamindari Abolition and Land Reforms Act, 1~50, is not affected by
B
Section 14 of the Hindu Succession Act as tenures created by the Uttar
Pradesh did not create proprietary interest hut only tenancy right. In
Bajaya v. Gopaikabai, [1978] 2 SCC 542, a Bench of three Judges of this
Court held that Bhumiswami and Bhumidari rights are two classes of
tenure-holders of lands paying land revenue to the State and are governed
by the provisions of the Hindu Succession Act. The tenancy rights having C
been separately dealt with by the Madhya Pradesh Land Revenue Code,
the devolution of the rights of an ordinary tenancy and an occu•iancy tenant
are in accordance with the personal law of the deceased tenant.

Sub-s.2 of Section 4 of the Hindu Succession Act, to remove any D
doubts, has declared that the Act shall not be deemed to affect the
provisions of any law in force providing for (i) preventions of fragmentation
of agricultural holdings; (ii) for the fixation of ceiling; and (iii) for the
devolution of tenancy rights in respect of such holdings. It is the policy of
the legislature that with a view to distribute the surplus land ceiling on
agricultural land has been prescribed so that the surplus land would be E
distributed to the landless persons etc. Therefore, the operation of such
law was excluded from the purview of the Hindu Succession Act. This
Court in Smt. Sooraja v. SDO, Rehli, [1995] Vol. II SCC 45, has upheld the
ceiling law and held that married daughters are not entitled to in\esta(e
succession of the father nor a separate holding since the definition of F
"family" did not include married daughter. The devolution of the tenancy
rights are governed by Entry 18 to the List II of the Seventh Schedule.
Therefore, the Hindu Succession Act to that extent stands excluded. As
regards the prevention of fragmentation of agricultural land, it is already
held that if at the instance of sons the agricultural lands are divisible and G
each son is entitled to hold and enjoy his share separately, daughters also
would be entitled to a separate share at a partition and enjoyment therein.
The fragmentation in ·that behalf, therefore, should not stand an impedi-
ment to the daughter's claiming an intestate succession and to claim a share
in the agricultural lands. The Hindu Succession Act regulates succession
of agricultural land and the word 'property' in Sections 6 to 8, 14 and 15 H
472 SUPREME COURT REPORTS [1996] SUPP. l S.C.R.

A and other sections in that Act would include agricultural land. Thus
considered the operation of Sub- s.(l) of Section 4 will have an overriding
effect fur 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.

B The reason assigned by the State level committee is that permitting
succession to the female would fragment the holding and in the case of
inter-caste marriage or marriage outside the tribe, the non-tribals or out-
siders would enter into their community lo take away their lands. There is
no prohibition for a son to claim partition and to take his share of the
c properly at the partition. If fragmentation at his instance is permissible
under law, why the daughter/widow is denied inheritance and succession
on par with son? In Kerala State, the Hindu Succession Act, 1956 was
modified in relation lo its application to the State of Kerala, by amendment
of Devasthanam Properties (Admission of Temporary Management and
D Control and Hindu Succession) (Amendment) Act, 1958 and of the (Kul-
laiamma Thumporan Korilakam Society Partition) Act, 1961. Kerala Hindu
Joint Family Abolition Act, 1975 brought about change bringing female
into the fold for succession per capita. Equally, the Hindu Succession (A.P.
Amendment) Act, 13 of 1986, the Andhra Pradesh Legislature took lead
and amended Section 6 of the Parent Hindu Succession Act and Section
E 29A conferred on the unmarried daughter the status of co-parcener by
birth and has given her right to claim partition and equal share along with
the sons. In the event of sale by the daughter of the property obtained at
the partition Section 29C gives right to male heirs to purchase the property
on payment of the consideration. In the event of disagreement on the
consideration, the Court having the jurisdiction is given power to determine
F
such consideration. In the event of non-payment by male heirs, the right
has been given to the female heir to sell the property lo outsiders. Kar-
nataka and Maharashtra legislatures have followed the suit and suitably
amended the Hindu Succession Act, 1956.

G Throughout the country, the respective State Laws prohibit sale of
all lands in tribal areas to non-tribals, restoration thereof to the tribals in
case of violation of law and permission of the competent authority for
alienation is a must and mandatory and non-compliance renders the sale
void. The Acts referred to hereinbefore prevailing in Bihar State expressly
H prohibit the sale of the lands by the tribals to the non-tribals and also direct
{'

MADHU KISHWAR v. STATE[K.RAMASWAMY,J.] 473

restoration or recompensation by equivalent lands to the tribals. Therefore, A
if the female heirs intend to alienate their lands to non-tribals, the Acts
_would operate as a check on their action. In the event of any need for
alienation, by a tribal female, it would be only subject to the operation of
these laws and the first offer should be given to the brothers or agnates.
In the event of their refusal or unwillingness, sale would be made to other
B
tribals. In the event of a disagreement on consideration, the civil court of
original jurisdiction should determine the same which would be binding in
the partition. In the event of their unwillingness to purchase the same,
subject lo the permission of the competent officer, female tribal may sell
the land lo lribals or non-tribals. Therefore, the apprehension expressed
by the State-level committee is unfounded. c
The Christians in India are governed by the Indian Succession Act,
1925. It is stated that by operation of Section 1 notification issued under
the Government of India Act of 1935, the operation thereof stood excluded
to the tribal Christians residing in the State of Bihar. There is no such D
prohibition in other States. Even otherwise, though the principles of Indian
Succession Act are strictly inapplicable, the general principles therein
being consistent with justice, equity and good conscience should equally be
applicable to the tribal Christians of the Bihar State.

E
I would hold that the provisions of Hindu Succession Act, 1956 and
the Indian Succession Act, 1925 though in terms, would not apply to the
Scheduled Tribes, the general principles contained therein being consistent
with justice, equity, fairness, justness and good conscience would apply to
them. Accordingly I hold that the Scheduled Tribe women would succeed
lo the estate of their parent, brother, husband, as heirs by intestate succes-
F
sion and inherit the property with equal share with male heir with absolute
rights as per the general princip1cs of Hindu Succession Act, 1956, as
amended and interpreted by this Court and equally of the Indian Succes-
sion Act to tribal Christian. However, the right of alienation will be subject
to the relevant provisions like the Act, the Bihar Scheduled Areas Regula- G
tion, 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. In case the tribal woman intends to alienate the land, subject to
obtaining appropriate permission from the competent authority und,er the H
474 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A appropriate Act, she should first offer the land for sale to the brother or
in his absence to any male lenial descendant of the family and the sale will
be in terms of mutually agreed consideration and other terms etc. In case
of any disagreement on consideration, the consideration shall be deter-
mined on an application filed by either party before the competent civil
B court of original jurisdiction 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. In case the brother or
lenial descendent is not willing to purchase either by mutual agreement or
as per the price settled by the civil court, the female tribal woman shall be

c entitled lo alienate the land to the non-tribal but subject lo the provisions
of the appropriate Act.

The writ petitions are accordingly allowed and mle nisi is made
absolute. The interim direction given for the protection of the petitioner
Nos. 2 and 3 in the first writ petition would continue until they voluntarily
D seek its withdrawal or modification in writing made to the District Super-
intendent of Police and an order in that behalf is passed and communicated
to them.

In the circumstances, parties are directed to bear their own costs.

E PUNCHHI, J. In these two petitions under Article 32 of the Con-
stitution, challenge is made to certain provisions of the Chota Nagpur
Tenancy Act, 1908, (hereafter referred to as 'the Act') which go to provide
in favour of the male, succession to property in the male line, on the
premise that the provisions are discrin1inatory and unfair against women
F and therefore, ultra vires the equality clause in the Constitution. A two-
member Bench hearing these matters at one point of time on soliciting was
conveyed the information that the State of Bihar had set up a Committee
to consider the feasibility of appropriate amendments to the legislation and
to examine the matter in detail. It was later brought to its notice that the
Committee ultimately had come to the opinion that the people of the area,
G who were really concerned with the question of succession, were not
interested in having the law changed, and that if the law be changed or so
interpreted, letting estates go into the hands of female heirs, there would
be great agitation and unrest in the area among the scheduled tribe people
who have custom-based living. The two-member Bench then ordered as
H follows:
,,;

MADHU KISHWAR v. STATE [PUNCHHI, J.] 475

"Scheduled tribe people are as much citizens as others and they A
are entitled to the benefit of guarantees of the Constitution. It may
be that the law can provide reasonable regulation in the matter of
succession to property \vith 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 B
the matter has not been examined by the State of Bihar and the
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. In these circumstances, instead of C
disposing of the two writ petitions by a final order, we adjourn the
hearing thereof for three months and direct the State of Bihar to
immediately take into consideration our order and undertake the
exercise indicated and report to the court by way of the affidavit
and along with .that a copy of the report may be furnished by the D
Committee to be set up by the State of Bihar."

In pursuance thereof, the State of Bihar has furnished an affidavit to
the effect that a meeting of the Bihar Tribal Consultative Council was held
on 31-7-1992, presided over by the Chief Minister and attended to by M.P.s
and M.L.A.s of the tribal areas, besides various other Ministers and officers E
of the State, who on deliberations have expressed the view that they were
not in favour of effecting any change in the provisions of the Act, as the
land of the tribals may be alienated, which will not be in the interest of the
tribal community at present. The matter was not closed, however, because
the Council recommended that the proposal may widely be publicised in
the tribal community and their various sub-castes may be promoted to give F
their opinion if they would like any change in the existing law. It is in this
backdrop that these petitions were placed before this three-member Bench
for disposal.

We have read with great admiration the opinion of our learned G
brother K. Ramaswamy, J. prepared after deep and tremendous research
made on the conditions of the tribal societies in India, leave alone the State
of Bihar, and in drawing a vivid picture of the distortions which appear in
the regulation of succession to property in tribal societies, when tested on
the touchstone of the codified Hindu law now existing in the form of The
Hindu Succession Act, 1956 etc. H
476 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A It is worth-while to account some legislation on the subject. The
Hindu Succession Act governs and prescribes rules of succession ap-
plicable lo a large major;ty of Indians being Hindus, Sikhs, Buddhists,
Jains etc. whereunder since 1956, if not earlier, the female heir is pul al
par with a male heir. Next in the line of numbers is the Shariat Law,
applicable to Muslims, whereunder the female heir has an unequal share
B
in the inheritance, by and large half of what a male gets. Then comes The
Indian Succession Act which applies to Christians and by and large to
people not covered under the aforesaid two laws, conferring in a certain
manner heirship on females as also males. Certain chapters thereof are
not made applicable to certain communities. Sub-section (2) of Section 2
c of the Hindu Succession Act significantly provides that nothing contained
in the Act shall apply to the members of any scheduled tribe within the
meaning of clause (25) of Article 366 of the Constitution, unless otherwise
directed by the Central Government by means of a notification in the
official gazette. Section 3(2) further provides that in the Act, unless the
D context otherwise requires, words imp01ting the masculine gender shall not
be taken to include females. (emphasis supplied). General rule of legislative
practice is that unless there is anything repugnant in the subject or context,
words importing the masculine gender used in statutes are to be taken to
include females. Attention be drawn to Section 13 of the General Clauses
Act. But in matters of succession the general rule of plurality would have
E to be applied within circumspection. The (provision afore) appears to have
been inserted ex abundanti 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 Mundas,
Oraons, Santals etc. in the State of Bihar, who are included in our concern,
F 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. And custom, as is well recognized, varies from
people to people and region to region.

In face of these divisions and visible barricades put up by the
G sensitive tribal people valuing their own 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. Brother K. Ramaswamy, J. seems to
have taken the view that Indian legislatures (and governments too) would
H not prompt themselves to activate in this direction because of political
. MADHUKISHWARv.STATE[PUNCHHl,J.] 477

reasons and in this situation, an activist Court, a political as it avo\vcdly is, A
could get into action and legislate broadly on the lines as suggested by the
petitioners in their written submissions. However, laudable, desirable and
attractive the _result may seem, it has happily been viewed by our learned
brother that an activist court is not fully equipped to cope with the details and
intricacies of the legislative subject and can at best advise and focus attention B
on the State polity on the problem and shake it from its slumber, goading it
to awaken, march and reach the goal. For in whatever measure be the concern
of the court, it compulsively needs lo apply, somewhere and at sometime,
brakes to its self-motion, described in judicial parlance as self-restraint. We
agree therefore with brother K. Ramaswamy, J. as summed up by him in the
paragraph ending on page 36 of his judgment that under the circumstances it C
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.

With regard to the statutory provisions of the Act, he has proposed D
to the reading down of sections 7 and 8 in order to preserve their con-
stitutionality. This approach is available from page 36 onwards of his
judgment. The words 11 male descendants" wherever occurring, would in-
clude "female descendants". It is also proposed that even though the
provisions of the Hindu Succession Act, 1956 and the Indian Succession
Act, 1925 in terms would not apply to the Scheduled Tribes, their general E
principles composing of justice, equity and fairplay would apply to them.
On this basis it has been proposed to take the view that the Scheduled
Tribe women would succeed to the estate of paternal parent, brother or
husband as heirs by intestate succession and inherit the property in equal
shares with the male heir with absolute rights as per the principles of Hindu F
Succession Act as also the Indian Succession Act. However much we may
like the law to be so we regret our inability to subscribe to the means in
achieving such objective. If this be the route of return on the Court's
entering the thicket, it is far better that the court kept out of it. It is not
far to imagine that there would follow a bee-line for similar claims in G
diverse situations, not stopping at tribal definitions, and a deafening uproar
to bring other systems of law in line with the Hindu Succession Act and
the Indian Succession Act as models. 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 amend-
ments to provisions, over and above the available legislature, should H
478 SUPREME COURT REPORTS (1996] SUPP. 1 S.C.R.

A normally be avoided. We are thus constrained to take this view, even
though it may appear to be conservative, for adopting a cautious approach,
and the one proposed by our learned brother is, regretfully not acceptable
to us.

The Chota Nagpur Tenancy Act was enacted in 1908. It's preamble
B suggests that it was a law to amend and consolidate certain enactments
relating to the law of landlord and tenant and the settlement of rent in
Chota Nagpur. It extends to North Chota Nagpur and South Chota Nagpur
divisions, except areas which have been constituted as municipalities under
the Bihar and Orissa Municipality Act, 1922. Chapter II, thereof providing
c classes of tenants containing Sections 4 to 8 is reproduced hereafter :

CHAPTER II

Section 4:

D "CLASSES OF TENANTS - There shall be, for the purposes of
this Act, the following classes of tenants, namely :

(1) tenure-holder, including under tenure-holders,

(2) raiyats, namely :
E
(a) occupancy-raiyats, that is to say, raiyats having a right of
occupancy in the land held by them,

(b) non-occupancy raiyats, that is to say, raiyats not having such
a right of occupancy, and
F
(c) raiyats having khunt katti rights.

(3) under raiyats, that is to say, tenants holding, whether immedi-
ately or immediately, under raiyats, and

G (4) Mundar Khunt-kattidars."

Section 5:

"MEANING OF 'TENURE-HOLDER' - Tenure-holder means
primarily a person who has acquired from the proprietor, or from
H another tenure-holder, a right to held land for the purpose of
MADHU KISHWAR v. STATE [PUNCHHI,J.] 479

collecting rents or bringing it under cultivation by establishing A
tenants on it, and includes -

(a) the successors-in-interest of persons who have acquired such
a right, and

(b) the holders of tenures entered in any registered prepared and B
confirmed under the Chota Nagpur Tenures Act, 1869.

but does not include a Mundari Khunt-Kattidar.

SeCtio11 6:
c
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 D
Mundari Khunt-kattidar.

Explanation - Where a tenant of land has the right io 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 grazing cattle on it. E
(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 Mundari Khunt-kattidar.

(3) In determining whether a tenant is a tenure-holder or a raiyat, F
the court shall have regard to -

(a) local custom, and

(b) the purpose for which the right of tenancy was originally
acquired. G
Sectio11 7:

'(1) MEANING OF 'RAIYAT HAVING KHUNT-KHATTI
RIGHTS' - 'Raiyat having khunt katti rights' means a raiyat in
occupation of, or having any subsisting title to, land reclaimed from H
480 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A jungle by the original founders of the village or their descendants
in the male line, when such raiyat is a member of the family which
founded that village or a descendant in the male line of any
member of such family :

Provided that no raiyat shall be deemed to have khunt katti
B 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
person who has lawfully acquired a title to a khunt kattidari
c tenancy before the commencement of this Act.

Section 8:

"MEANIC'!U OF MUNDARI KHUNT-KATTIDAR - 'Mundari
D Khunt-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
E in possession of such land or have any subsisting title thereto; and

(b) as regards any portions of such land which have remained
continuously in the possession of any such Mundari and his des-
cendants in the male line, such descendants.

F At this place, Section 76 alongwith its illustrations would also need
reproduction:

"7ri. SA YING OF CUSTOM - Nothing in this Act shall affect any
custom, usage or customary right not inconsistent \Vith, or not
expressly or by necessary implication modified or abolished by, its
G
provisions.

ILLUSTRATIONS

I. A custom or usage whereby a raiyat obtains a right of occupancy
H as soon as he is admitted to occupation of the tenancy, whether
MADHUKISHWAR v. STATE [PUNCHHl,J.] 481

he is a settled raiyat of the village or not, is inconsistent with, and A
is not expressly or by necessary implication modified or abolished
by, provisions of this Act. This custom or usage, accordingly,
wherever it exists, will not be affected by this Act.

II. A custom or usage by which an under raiyat can obtain rights
similar to those of an occupancy raiyat is, similarly, not inconsistent B
with, and is not expressly or by necessary implication modified or
abolished by, the provisions of this Act, and will not be affected
by this Act.

Ill. A custom or usage whereby a raiyat 1s entitled to make
improven1ents on his tenancy and to receive compensation therefor
c
on ejectment is not inconsistent with, and is not expressly or by
necessary implication modified or abolished by the provisions of
this Act. That custom or usage accordingly, where it exists, will not
be affected by this Act.
D
IV. A custom or usage whereby korkar is held,

(a) during preparation for cultivation, rent-free, or

(b) after preparation, at a rate of rent less than the rate payable
for ordinary raiyati land in the same village tenure or estate, E

is not inconsistent with, and is not expressly or by necessary
implication modified or abolished by, the provisions of this Act.
That custom or usage accordingly, wherever it exists, will not be
affected by this Act."
F
A bare outline of these provisions goes to show that these have been
enacted to identify classes of tenants. These provisions have no connection
with the ownership of land. Section 3(XXVI) defines 'tenant' to mean a
person who holds land under another and is, or but for a special contract
would be, liable to pay rent for that land to that other person. Sub-section
(1) of Section 4 is plainly tied up with Section 5. Sub-section (2)(a) & (b) G
of Section 4 is tied up \vith Section 6 and sequally with Section 76. Local
customs, as the illustrations under Section 76 show, arc for the purpose of
streamlining the tenancy rights and landlord-tenant relationship. Sub-sec-
tion (Z)(c) of Section 4 in the same pattern is tied up with Section 7. Lasily
sub-section (4) of Section 4 is tied up with Section 8 relating to "Mnndari H
482 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A Khunt-kattidhar". All these tenants as classified, do not own the tenanted
lands, but hold land under others. Their tenancy rights are identified and
regulated through these provisions. The personal laws of the tenants
nowhere figure in the set-up.

The solitary decided case available under Section 8 of the Act and
B where personal law of the Mundari was allowed to intrude is Jitmohan
Singh Munda v. Ramratan Singh and Another, [1958] Bihar Law Journal
Reports 373. There the learned .T udges of the High Court comprising the
Bench seem to have differed on the applicability of section 8 bnt not on its
scope. The case there established was that the Mundari Khunt Kattidar
C deceased was of Hindu religion and on that basis it was held that his widow
could retain possession of the tenancy right of her deceased husband
during her life time. The right of the male collateral to take possession was
deferred by the intervening widow's life estate. This case could, in a sense,
be taken as stare decisis, when none else is in the field, in order to take
the cue that personal law of a female descendant of a Mundari Khunt
D Kattidar could steal the show and section 8 would have to be read accord-
ingly. But this case is decided on misreading of section 8. The earlier part
of it providing the meaning of Mundari Khunt Kattidar has been over-
looked. It has been assumed, on the basis of the latter part that the
expression has an inclusive definition and thus would not exclude the
E Mundari's widow governed by Hindu Law. The High Court at page 375 of
its report observed as follows :

"The contention based on section 8 also terminologically cannot
be accepted. In the first place, in defining Khunt Kattidar interest
as quoted above, the word used in 'includes' whereafter occur
F clauses (a) and (b) containing reference to the male line of a
Mundari. The word 'includes' cannot be taken to be exhaustive."

.Jitmohan Singh's case can not thus he a guiding precedent. It is at
best a decision on its own facts. There is no scope thus in.reading down
G the provisions of section 8 and even that of section 7 so as to 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.

Life is a precious gift of nature to a being right to life as a fundamen-
H tal right stands enshrined in the Constitution. The right to livelihood is born
MADHU KISHWAR v. STATE[PUNCHHI,J.] 483

of it. In Olga Tellis & 01'. v. Bombay Municipal Co1poratio11 a11d Others, A
AIR (1986) SC 180 this Court defined it in this manner in para 32 of the
report :

"........... The sweep of the right to life conferred by Article 21 is
wide and far-reaching. It does not mean merely that life cannot be B
extinguished or taken away as, for example, by the imposition and
execution of the death sentence, except according to procedure
established by law. That is but one aspect of the right to life. An
equally important facet of that right is the right to livelihood
because, no person can live without the means of living, that is the
means of livelihood. If the right to livelihood is not treated as a c
part of the constitutional right to life, the easiest way of depriving
a person of his right to life would be to deprive him of his means
of livelihood to the point of abrogation. Such deprivation would
not only denude the life of its effective content and meaningfulness
but it would make life impossible to live. And yet, such deprivation D
would not have to be in accordance with the procedure established
by law, if the right to livelihood is not regarded as a part of the
right to life. That, which alone makes it possible to live, leave aside
what makes life liable, must be deemed to be an integral com-
ponent of the right to life. Deprive a person of his right to
livelihood and you shall have deprived him of his life. Indeed, that E
explains the massive migration of the rural population to big cities.
They migrate because they have no means of livelihood in the
villages. The motive force which propels their desertion of their
hearths and homes in the village is the struggle for survival, that
is, the struggle for life. So unimpeachable is the evidence of the F
nexus between life and the means of livelihood. They have to eat
to live : Only a handful can afford the luxury of living to eat. That
they can do, namely, eat, only if they have the means of livelihood.
That is the context in which it was said by Douglas J. in Baksey,
(1954) 347 \-1.D. 442 that the right to work is the most precious
liberty that man possesses. It is the most precious liberty because, G
it sustains and enables a man to live and the right to life is a
precious freedom. "Life", as observed by Fields, J. in Mwm v.
Illi11ois, (1877) 94 US 113, means something more than mere
'nirnal existence and the inhibition against the deprivation of life
extends to all those limits and faculties by .which life is enjoyed. H
484 SUPREME COURT REPORTS [1996] SUPP.1 S.C.R.

A This observation was quoted with approval by this Court in Kharak
Singh v. State of UP, [1964] 1 SCR 332.

And then in para 33 :

"Article 39(a) of the Constitution, which is a Directive Principle
B
of State Policy, provides that the State shall, in particular, direct
its policy towards securing that the citizens, men and women
equally, have the right to an adequate means of livelihood. Article
41, which is another Directive Principle, provides, inter alia, that
the State shall, within the limits of its economic capacity and
c development make effective provision for securing the right to
work in cases of unemployment and of undeserved want. Article
37 provides that the Directive Principles, though not enforceable
by any Court, are nevertheless fundamental in the governance of
the country. The Principles contained in Arts. 39(a) and 41 must
be regarded as equally fundamental in the understanding and
D
interpretation of the meaning and content of fundamental rights.
If there is an obligation upon the Staie to secure to the citizens
and adequate means of livelihood and the right to work, it would
be sheer pedantry to exclude the right to livelihood from the
content of the right to life. The State may not, by affirmative action,
E be compellable to provide adequate means of livelihood or work
to the citizens. But, any person, who is deprived of his right to
livelihood except according to just and fair procedure established
by law, can challenge the deprivation as offending the right, to life
conferred by Article 21."
F
Agriculture is not a singular vocation. It is, more often than not, a
joint venture, mainly of the tiller's family members. Some of them have to
work hard and the others harder still. Everybody, young or old, male or
female, has chores allotted to perform; a share in the burden of toil.
Traditionally and historically, the agricultural family is identified by the
G male head and this is what Sections 7 and 8 recognise. But on his death,
his dependent family females, such as his mother, widow, daughter,
daughter-in-law, grand-daughter, and others joint with him have, under
Sections 7 and 8, to make way lo a male relatives within and outside the
family of the deceased entitled thereunder, disconnecting them from the
H land and their means of livelihood. Their right to livelihood in that instance
MADHU KISHWAR v. STATE [PUNCHHI, J.] 485

gets affected, a right constitutionally recognised, a right which the female A
enjoyed in common with the last male holder of the tenancy. It is 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 tl1e 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, B
such female descendants can the males in the line of descent take over the
holding exclusively. In other words, the exclusive right of male. succession
conceived of in sections 7 and 8 has to remain suspended animation so long
as the right of livelihood of the female descendant's 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 C
to the statutory right of male succession, entitling her to the status of an
intervening limited dependent8/descendents 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. To
this extent, it must be so held. We would rather, on the other hand, refrain D
from striking down the provisions as such on 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 dependents/descendent chooses other
means of livelihood manifested by abandonment or release of the holding E
kept for the purpose.

For the afore'going reasons, disposal of these writ petitions is or-
dered with the above relief to the female dependcnts/descendents. At the
same time direction is issued to the State of Bihar to comprehensively F
examine the question on the premise of our constitutional ethos and the
need voiced to amen<.! the law. It is also directed to examine the question
of recommending to the Central Government whether the later woulu
consider it just and necessary to withdraw the exemptions given under the
Hindu Succession 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 G
the State of Bihar is concerned. These writ petitions would on these
directions stand disposed of making absolute the interim directions in
favour of the writ petitioners for their protection. No costs.

R.A. Petitions disposed of.

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