Mumbai: Observing that gender inequality is an ‘anathema’ to Indian Constitution, the Nagpur bench of the Bombay High Court recently held that a daughter in a tribal family also has an equal share in her parents’ properties, just the way a son has. The HC has further held that even if the customary laws governing tribes may exclude women from claiming shares in properties, the same cannot be allowed as it is against the Constitution of India.
The landmark ruling was delivered by a single-judge bench of Justice Rohit Deo while hearing a property dispute between brothers and sisters belonging to Gond tribe. The sisters claimed their share in the properties of their father, who died intestate (not having made a will before one dies).
The claim made by the sisters was opposed by their brothers claiming the Gond tribe was governed by customary laws and the provisions of Hindu Succession Act or the Indian Succession Act cannot be applied in their case. The brothers further argued that the customary laws of the Gond tribe do not permit women to claim any share in her parents’ properties.
Trashing the contentions raised by the brothers, Justice Deo observed, “Gender inequality is anathema to constitutional philosophy and morality. Obliteration of inequality is a cherished goal of the Indian Constitution. Custom or usage which prima facie is not gender neutral would have to muster the test of the right to equality prohibition of discrimination and the right to life and liberty of the Constitution of India.”
The bench further junked the argument of the brothers that if a tribal woman wants a share in the property then she has to prove that the customary laws of the tribe, allow her to make such claims. An insistence that a female tribal who is a natural legal heir must plead and then prove that under the customary law.
she is not excluded from inheritance would run counter to the Constitutional imperative that the age-old apathy, prejudices and gender discrimination directed against women must be addressed and minimized if not entirely eradicated,” Justice Deo said.
In view of the constitutional philosophy which seeks to minimize if not eliminate gender discrimination, I hold that if a female tribal who is a natural legal heir seeks equal share in the property of her father or mother, it would be impermissible for the Court to start with the assumption that the customary law governing the tribe excludes the females from inheritance and to then insist that the female tribal must plead and prove a custom that she is not so excluded,” the judge held. The bench accordingly, dismissed the plea filed by the brothers and allowed their sisters to claim an equal share in their parents’ properties.