More than 200 indigenous tribes spread across the north eastern states of Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland, Manipur, Tripura have varied forms of customary laws governing marriage,divorce, inheritance,adoption and maintenance.Major part of which is uncodified but recently Mizoram legislature passed the Mizo Hnam Dan, Mizo customary law.The ongoing intellectual narratives both in support and opposing the move to usher in UCC raises to me some very pertinent questions regarding UCC and its bearing on tribal customary laws and practices which are distinct from the major personal laws of the Hindus,Muslims,Christian or parsis. Even though some common practice of valid polygamy is similar in case of Muslim and tribals albiet with different approaches to the fundamentals of polygamy.
First of all, amongst the tribe inter se, there is no homogeneity in customary laws even amongst the sub-tribes and different clans.Despite the large percentage of population embracing christianity, Hinduism and Buddhism, native tribal religion and customary practices are still intact in many forms.In all personal customary laws, traditional dispute redressal mechanisms at the village or community level is still the core of tribal society even today.A system which is more efficacious, spontaneous, free of procedural hurdles aiming at mutually amicable solutions.
Women's rights and gender equality seem to be at the core of the current discourse on UCC. From a tribal women's perspective two important issues are women's property right and practice of polygamy.Again, on this also one finds different approaches amongst the tribe, however the rudimentary principle being same.In Meghalaya, a matrilineal society,mainly Garos, Khasis, Jaintias, in their culture the youngest daughter inherit the property from her mother. Mizoram has about 16 major tribes and a number of sub-tribes,the youngest son inherits the property.But, a recent amendment to Mizo Hnam Dan by the Mizoram legislature has permitted the father to make a written will conferring woman the right to inherit the family property, viewed as a progressive move.
Poligamy, a vice though has been an age old custom in this part of the tribal world but not so rampant against the newer generation.Both the other wife or wives are given social recognition as per customary norms.Her offspring enjoys equal property right from the father.Not to say that polygamy is welcomed by the woman folks but they are bound to accept after due customary norms required are fulfilled.There has been no historical revolt by the women against this practice. May be due to patriarchy and also because of the supreme position enjoyed customarily by the first wife.So long customary norms recognize polygamy any attempt on the part of UCC to make it unlawful will not be effective as it will contradict with the social customs. Poligamy need to be socially and legally discouraged goes without saying, but the community has to initiate the reformation in this regard.By beginning of codification of customary laws taking cue from the Mizos but the process should be allowed to develop indigenously. These uncodified set of rich treasure of customary norms can not be treated on par with the personal laws of both Hindu and the Muslims despite certain commonalities.
Another instance of diversity can be taken from Arunachal having predominantly 25 major tribes and more than 100 sub tribes, In this culture women has no property right over immovable assets. The eldest son plays a predominant role next to the father in all matters.But in practice the paternal family socially supports the deserted and helpless daughter and provide maintenance to resettle her.Probably this is a peculiar trait of a free, flexible and clan oriented ethos of tribal culture by and large.But the paradox is woman remains at the forefront of social structure and has a decisive role in all family matters which is a great equalising factor. This is a fact without there being the UCC yet.
Interesting aspect of tribal marriage is the system of bride price which materially differs from the other personal laws.It is commonly practiced amongst majority of the tribes. The bride price is given by boy's family to the girls side, usually in different kinds,forms vary.Initiative and responsibilities of marriage fall on the groom's side. In khasi culture girls house become the matrimonial home where the boy has to join after the marriage which is not the custom amongst the other tribes.
Divorce is an important aspect of marriage amongst the tribals although instance of divorce is rare amongst the tribes.Divorce is permitted but not common and the recognized grounds may be infidelity, barrenness, cruelty but not strictly defined, simply incompatibility, unsoundness of mind, on ground of polygamy is rare.Minor children are put under the custody of the mother and husband has to pay compensation as decided by the village councils of elders on a case to case basis and return all valuable property given to her by the family and more as decided.Children will continue to have the official surname of the father even in case she remarries.Compare to divorce granted by the courts which takes a minimum of two years, under the customary system it is much more quicker, it is granted in few sittings in an amicable way.These are just few notable points to highlight the customary diversities where customs, religion and cultures are closely intertwined.
It is feared that UCC will disturb the social fabric of the indigenous culture. It will impact the flexible,practical,spontaneous traditional jurisprudential justice system.Nevertheless,it is important to address these legal and cultural pluralities in the current discourse.What about the legitimate concerns on sixth schedule constitutional protections and Art.371 (A) considered a saving grace for creating certain degree of autonomy to select group of tribes? What will happen to these constitutional safeguards if UCC become a reality? An existing custom to be declared as unlawful, can only become effective with the natural process of change originating from the community itself otherwise it will do more harm than good to the tribal culture where diversity is celebrated as a way of life.To quote Gandhiji,no culture can live if it attempts to be exclusive.We may all take different roads, yet reach the same destination.These indigenous cultural entities are best left out of the ambit of UCC giving them liberty to opt for it whenever they wish to.
Dr. Topi Basar is an Associate Professor at National Law University Assam.
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