9 March 2023 4:15 AM GMT
The Madras High Court has recently come to the support of tribal women in their struggle for equal succession rights. The court has noted that the Hindu Succession Law does not to exclude tribal women from its operation but only intends to positively include the customs. Clause (2) of Section 2 of the Hindu Succession Act states that the Act shall not apply to the members of the...
The Madras High Court has recently come to the support of tribal women in their struggle for equal succession rights. The court has noted that the Hindu Succession Law does not to exclude tribal women from its operation but only intends to positively include the customs.
Clause (2) of Section 2 of the Hindu Succession Act states that the Act shall not apply to the members of the Scheduled Tribe unless the Central Government by notification in the official gazette otherwise directs.
Justice SM Subramaniam highlighted that the exclusion under Section 2(2) of the Hindu Succession Act should not come in the way of inheritance by tribal women in areas where Hinduism and Buddhism were being followed.
Nothing has been shown about the custom and practice prevailing in the community, where the parties to the lis on hand belong. But the tribal women are deprived of adopting the Hindu Succession Act. Therefore, Sub Section (2) of Section 2 of the Hindu Succession Act 1956, will not come in the way of inheritance of the property by the daughters belonging to the tribal area, where Hinduism and Buddhism are followed.
The court also directed the State government to initiate necessary steps for issuing notifications through the Central Government to protect the rights of tribal women in the state.
However, the Government of Tamil Nadu shall initiate necessary steps for the purpose of issuing appropriate notification through Central Government under Section 2(2) of the Hindu Succession Act 1956, to protect the equal property right of the tribal women in the state of Tamil Nadu.
The court added that mere non-issuance of the notification or its postponement cannot deprive tribal women from getting their right in the family property. Thus, Section 2(2) was not a complete bar.
Thus, Section 2(2) cannot be construed as a complete bar for invoking the provisions of the Hindu Succession Act. But it paves way for the Central Government to notify the tribal communities, who have already moved forward and whose primitive customs and practice are not prevailing amongst the community for inheritance.
The court was hearing an appeal challenging the orders of the Trial court wherein the trial court had invoked the provisions of the Hindu Succession Act and held that the tribal women are also entitled for an equal share in their family property on par with other male coparcenors.
On appeal, the appellant mainly contended that Section 2(2) of the Hindu Succession Act clearly excludes tribal women from the application of the Hindu Succession Act and thus the trial court had erroneously applied the law.
The respondents however contended that since the appellants failed to establish the custom and practice prevailing in the community to which they belong, they would be governed by the Hindu Succession Act. Thus, the trial court was right in relying upon the law. It was also contended that tribal women cannot be deprived or denied of an equal share on par with other female Hindus in the state as the same would amount to unconstitutionality and discrimination.
The court, after establishing that the parties belonged to notified tribal community, went on to examine the customs and practices which prevailed within their community for the purpose of applying the exclusion clause contained in Section 2(2). When there was no established custom and practice, the provisions of the Act will come into effect.
The court also observed that the legislature did not intend for any inequality or unconstitutionality and its intention was only to protect the customs and practices strongly prevailing amongst the community. Thus, a golden interpretation of the legislature had to be adopted and not a negative interpretation depriving women from getting an equal share.
Also Read- Scheduled Tribe Women Not Entitled To Any 'Right Of Survivorship' Under Hindu Succession Act: Supreme Court Urges Centre To Bring Suitable Amendment
Case Title: Saravanan and another v. Semmayee and others
Citation: 2023 LiveLaw (Mad) 80