THE RIGHT TO SURVIVORSHIP OF TRIBAL WOMEN:

AN ANALYSIS

Submitted by Submitted to
Shruti Dhoot
Prof. (Dr.) Kamaljit Kaur
22097
Professor of Law & Dean Academics

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PUNJAB – 2023
 DECLARATION

I hereby declare that this project on the topic “THE RIGHT TO SURVIVORSHIP OF TRIBAL
WOMEN: AN ANALYSIS” submitted to the Rajiv Gandhi National University of Law, Patiala is an
outcome of my original work carried out under the supervision of Prof. Dr. Kamaljit Kaur. This project
is based entirely on my understanding of the topic and has not been submitted elsewhere. All the ideas
and references have been duly acknowledged. To the best of my understanding, the project is free from
plagiarism.
Shruti Dhoot (22097)
Rajiv Gandhi National University of Law, Patiala
2024
 ACKNOWLEDGEMENT

Apart from my efforts, my project’s success and completion depended largely on others’ encouragement
and supervision. I take this as an opportunity to thank the many people without whom this project would
not have been in its current form.
Firstly, I express my gratitude to my university for promoting this kind of project work which helps us
add to our skill sets.
My humble thank you to respected Prof. Dr. Jai S. Singh, our Vice Chancellor for steering the university
toward a growth-based curriculum and helping students become proficient in the field.
Further, I would like to thank my Family Law Professors Prof. Dr. Kamaljit Ma’am and Dr. Gaganpreet
Ma’am who acted as guiding lights in all stages of this project.
Lastly, I thank my parents and classmates for their emotional support and motivation to pursue my
dreams.
 TABLE OF CONTENTS

TOPIC PAGE NO.

INTRODUCTION 1-2
THE JURISPRUDENCE ON WOMEN’S RIGHT TO 3-4
SUCCESSION
WHY IS THE RIGHT OF SUCCESSION DENIED TO 5-6
TRIBAL WOMEN?
CONCLUSION 7
BIBLIOGRAPHY 8
 INTRODUCTION
The purpose of the Hindu Succession Act of 1956 was to grant Hindu women the same rights as male
heirs under Mitakshara law concerning self-acquired property. With the passage of the Hindu Succession
(Amendment) Act of 2005, the same is now applicable to coparcenary property. The 1956 Act does not
incorporate scheduled Tribes (STs). The Act’s Section 2(2) declares: “This Act does not apply to
members of any Scheduled Tribe as defined by Clause (25) of Article 366 of the Constitution, unless the
Central Government specifically directs otherwise by notification in the Official Gazette,
notwithstanding anything contained in Sub-section (1).” This indicates that if the intestate person is a
member of a Scheduled Tribe as defined by Article 342 of the Constitution , the Act will not apply. In
Kamla Neti (Dead) v. The Special Land Acquisition Officer & Ors.,1 the Supreme Court observed and
vociferously clarified that “there is no reason to deny such a right to the daughter of a person of the tribal
community when the daughter belonging to a non-tribal is entitled to an equal share in the property of
the father.” The main issue in the case was a tribal community member’s daughter’s right to a portion of
the compensation for land she had acquired under the applicable Act which was presented before The 2-
judge division bench comprising of Justice M.R. Shah and Justice Krishna Murari on 9th December 2022
Significant legal issues about the relationship between constitutional rights, equitable principles, and
legislative provisions were brought up by this case. The SC primarily focused on section 2(2) of the Act,
which expressly excludes female members of Scheduled Tribes from its application. This provision
posed a hurdle for the appellant, as it seemingly precluded her from claiming any rights under the Act.
However, the appellant’s counsel relied on the minority view in the Madhu Kishwar vs. State of Bihar2
(1996) 5 SCC 25 case, arguing that the Act’s provisions should extend to female members of Scheduled
Tribes, and they should be entitled to equitable treatment in matters of succession and inheritance.
Despite the persuasive argument presented by the appellant’s counsel, the SC was constrained by legal
principles and precedence. While acknowledging the equitable grounds for the appellant’s claim, the SC
emphasized the supremacy of law over equity. Drawing on the precedent set in the B. Premanand vs.
Mohan Koikal3 (2011) 4 SCC 266 case, the SC underscored that when there is a conflict between law
and equity, the law must prevail. Therefore, even if equity supports the appellant’s claim, it cannot
override the explicit provisions of the Act, including section 2(2). The SC recognized the potential
consequences of accepting the appellant’s argument. Allowing her claim based on survivorship under
the Act would effectively require an amendment to the law, which falls within the legislative domain
rather than the judiciary’s purview. This distinction between the roles of the judiciary and the legislature
is fundamental to the separation of powers enshrined In the Indian Constitution. The SC, therefore,

1
Kamla Neti v. Special Land Acquisition Officer, 2022 SCC OnLine SC 1694
2
Madhu Kishwar vs. State of Bihar (1996) 5 SCC 25
3
B. Premanand vs. Mohan Koikal3 (2011) 4 SCC 266
refrained from interpreting the Act in a manner that would effectively amend its provisions, as this would
infringe upon the legislative prerogative. However, the SC did not overlook the broader implications of
its decision. It acknowledged the importance of ensuring equality and justice for all citizens, regardless
of their gender or tribal affiliation. In light of this, the SC directed the Central Government to examine
the issue comprehensively and consider appropriate measures to address the inequities faced by female
heirs belonging to tribal communities. This directive was grounded in constitutional principles,
particularly the Right to Equality guaranteed under Articles 14 and 21 of the Constitution of India.
However the Kamla Neti court failed to highlight how the exemption deprives tribal women of legal
recourse to assert their right to survival under statutes governing intestate inheritance. Therefore, this
paper is an attempt to examine the exemption clause’s impact on indigenous women’s succession rights
piece by piece.
 THE JURISPRUDENCE ON WOMEN’S RIGHT TO SUCCESSION

India’s personal laws originally appeared during its colonial era. The British introduced Hindu and
Muslim personal laws in the early 20th century to protect the domestic front. These “Hindu” and
“Mohammedan” regulations were mainly preserved by the Constitution at the time of independence. As
a result, aboriginal patriarchal practices inspired many of the personal laws that exist today. One such
rule that preserved inequality and mirrored the patriarchal traditions of antiquity was Hindu succession
law. The primary piece of Hindu law that addresses the question of ancestral property succession is the
Hindu Succession Act. The statute established the survivorship rule, which states that only a shared
Hindu ancestor’s male lineal descendants are eligible to inherit ancestral property. The Act’s overtly
discriminatory characteristics led to it being labelled as patriarchal and receiving harsh criticism from
intellectuals and activists. Its legality was contested on the grounds that it infringed against the right to
equality protected by Articles 14 and 15 of the Constitution. It took legislators over 50 years to recognise
that enacting a gender-neutral law was imperative. At the period, there was a demand for legislation that
would grant women equal access to their relatives’ possessions without subjecting them to oppression.
After fifty years of discussion on women’s succession rights on coparcenary property, the Hindu
Succession (Amendment Act, 2005) was passed. Women now have the same legal rights as men to
coparcenary property and to be joint heirs, thanks to this modification. In this sense, “coparcenary
property” refers to any property that a Hindu gets from their father, grandfather, or great-grandfather. A
coparcener is a person who is entitled by birth to inherit the property of their ancestors. The amendment
provided substitution of a new section for Section 6 of the Hindu Succession Act. The new Section 6 of
the amendment provided that: “(1) On and from the commencement of the Hindu Succession
(Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a
coparcener shall, (a) by birth become a coparcener in her own right in the same manner as the son; (b)
have the same rights in the coparcenary property as she would have had if she had been a son; (c) be
subject to the same liabilities in respect of the said coparcenary property as that of a son.” Consequently,
in the event that a Hindu dies after the Hindu Succession (Amendment) Act, 2005 takes effect, their
share of a joint Hindu family’s property, which is governed by Mitakshara law, will pass under this Act
either by testamentary or intestate succession as opposed to survivorship, and the coparcenary property
will be considered to have been divided as though a partition had taken place. 4 Consequently, the
daughter receives the same share as a son would receive. It seemed that the amendment was more gender-
neutral. It protected women’s fundamental right to equality in this circumstance and sought to eradicate

4
Halder, Debarati, and K. Jaishankar. “PROPERTY RIGHTS OF HINDU WOMEN: A FEMINIST REVIEW
OF SUCCESSION LAWS OF ANCIENT, MEDIEVAL, AND MODERN INDIA.” Journal of Law and
Religion, vol. 24, no. 2, 2008, pp. 663–87. JSTOR, http://www.jstor.org/stable/25654333. Accessed 3 Apr. 2024.
gender-based discrimination. But it left unclear whether women have coparcener rights if the father was
a coparcener who died before September 9, 2005, the day the amendment went into effect. This issue
concerning the interpretation of section 6 was finally settled by the Supreme Court in the case of Vineeta
Sharma vs. Rakesh Sharma (2020)5. The court observed that, “The conferral of right is by birth, and the
rights are given in the same manner with incidents of coparceners as that of a son and she is treated as a
coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though
the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer
benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include
a reference to a daughter as a coparcener”. A retroactive law is a law that does not apply retrospectively;
rather it operates after the occurrence of an event in the past, or requirements that were derived from an
antecedent event. The applicability of section 6 is based on birth, which is an antecedent event for the
purpose of retroactive application; therefore, daughters enjoy the same rights to coparcenary property as
sons, even if the father passed away before the 2005 amendment. Hence, daughters cannot be denied the
advantages granted by the Act unless the partition property is affected by metes and bounds. The issue
of great concern is that even when the rights of Hindu women have evolved from being denied ancestral
right over property to being entitled to such right by being born in a Hindu Undivided Family, the rights
of tribal women have remained static from the last six decades, and have evolved meagrely in
comparison.

5
Vineeta Sharma vs. Rakesh Sharma (2020) AIR 3717 (SC)
 WHY IS THE RIGHT OF SUCCESSION DENIED TO TRIBAL WOMEN?

“To deny the equal right to the daughter belonging to the tribal even after a period of 70 years of the
Constitution of India under which right to equality is guaranteed, it is high time for the Central
Government to look into the matter and if required, to amend the provisions of the Hindu Succession Act
by which the Hindu Succession Act is not made applicable to the members of the Scheduled Tribe.” The
bench in the Kamla Neti judgement had observed. All tribal communities falling within Schedule V and
Schedule VI of the Constitution of India are governed by customary laws in matters of inheritance,
marriage and succession. Thus, the two laws on intestate succession in India – the Indian Succession
Act, 1925 and the Hindu Succession Act, 1956 – deal with intestate succession of two communities -
Christians and Hindus, respectively. Scheduled Tribe women who profess Hinduism have been excluded
from the beneficial provisions of the Hindu Succession Act, 1956 or the much-celebrated 2005
Amendment. This exclusion denies them equal rights to inherit ancestral property compared to women
from other Hindu communities. These provisions do not apply to them because of section 2(2) of the act
which reads that “Notwithstanding anything contained in sub-section (1), nothing contained in this Act
shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of
the Constitution unless the Central Government, by notification in the Official Gazette, otherwise
directs.” This exemption forces them to solely rely on customs to be able to succeed. The STs were
exempted from the application of the Hindu Succession Act primarily for the purpose of protecting their
unique practices around the transfer of ancestral property. Such reasoning is based on two fallacies. First
off, patriarchal societies characterise most tribal societies in India; women are not allowed to inherit
rights regarding family property, whereas men are recognised as genuine heirs. As a result, tribal women
are not entitled to ancestral property in the same way as their male counterparts. The discrepancy in land
ownership between genders was highlighted by the All-India Report on Agriculture Census 2015-16,
which revealed that just 16.7% of ST women had land, compared to 83.3 percent of ST men. The Hindu
Succession Act’s objectives are at odds with the reasoning for section 2(2)’s exemption of STs. The Act
was passed in order to address the historical prejudice against Hindu women under Mitakshara law;
nonetheless, tribal women are not allowed to inherit coparcenary property equally because of a clause in
Section 2.6 The rationale is to protect the predominantly anti-women ST norms that regulate the
devolution of coparcenary property. Second, according to the 2011 Census, almost 90% of ST residents
reside in rural areas. Land holdings are the main source of income in rural communities. It follows that
daughters of tribes must receive an equivalent share of land to that which is granted to male heirs. The
two fallacies demonstrate how the legislature at the time disregarded the effects on tribal women of

6
All-India Report on Agriculture Census 2015-16
omitting STs from the Act’s application, as no objection to or discussion of Section 2(2) was raised
during parliamentary deliberations on the Hindu Succession Bill, 1954. Tribal women’s inheritance
rights are impeded by customs and have only evolved with judicial interventions. The right of succession
is not directly available to tribal women; rather, it was provided by a judicial innovation of the
Chhattisgarh High Court known as the ‘test of Hinduisation’ in the case of Butaki Bai v. Sukhbati
(2014).7 In this case, the court provided the requirements that need to be fulfilled for tribal women to
avail the benefits of the Hindu Succession Act. It would have to be proved that “(i) the plaintiffs pleading
they have abandoned their law of origin (customary law) have to plead and establish by leading
appropriate legal evidence that they have given up their customary succession, and (ii) to establish
further that they have become “Hindus out and out” or “sufficiently Hindus” so as to be governed by in
matter of succession and inheritance by any school of Hindu law, and thereafter to prove.” The Hindu
Succession Act, will not be applicable to the members of the Scheduled Tribe, without any explicit
clause in the Hindu Succession Act, the Hindu Succession Act cannot be given a retrospective operation
to provide compensation to the appellant. In the case of Labishwar Manjhi vs. Pran Manjhi and Ors.,8
it is clearly held that if the members of the Scheduled Tribe follow customary and practices of Hinduism,
then and then only the Hindu Succession Act would be applicable. That is there has to be Hinduization
of the Tribe. The current patchwork of laws and judicial precedent reflects two different approaches:
first, the State’s reluctance to acknowledge women’s survivorship rights because they deal with sensitive
family, tribal, and deeply ingrained gender norms; and second, the judiciary’s attempts to bring STs
under the Hindu Succession Act. It doesn’t, however, fix the issue because native tribes, particularly
women, are susceptible to slipping between the gaps in the various rules governing their access to
property, depriving them of their inheritance rights. Butaki Bai’s “Hinduization” test, which is meant to
establish a claim to succession, merely exacerbates the issue. First, the examination calls for indirect
evidence that the tribe’s customs and culture adhere to Hinduism. This deprives women from those tribes
whose Hinduization is inadequate of their right to survive. Second, it puts the onus on the tribe’s women
to provide the court with solid evidence in order to support any claims to succession. The requirement
is blind to the reality that, because indigenous people reside in enclosed areas near forests,
documentation of long-standing customs and traditions is sometimes lacking. The tribe’s culture and
traditional ways are intrinsically related to its identity.9 Therefore, any tribal woman who tried to
demonstrate anything that went against tribal custom may encounter strong resistance and perhaps be
shunned by her tribe. As a result, there are problems with the Hinduization test when it comes to

7
Butaki Bai v. Sukhbati 2006(2)MPHT60(CG)
8
Labishwar Manjhi vs. Pran Manjhi and Ors 2001(1)BLJR30
9
D. N. “Significance of Women’s Position in Tribal Society.” Economic and Political Weekly, vol. 23, no. 26,
1988, pp. 1311–12. JSTOR, http://www.jstor.org/stable/4378660. Accessed 3 Apr. 2024.
women’s social realities. It is important that the provision is amended because High illiteracy and lack
of awareness about property rights results in the majority of tribal elders dying without a proper will to
divide their property among their heirs, which makes the ST community heavily dependent upon
intestate succession laws and customs.
 CONCLUSION

In a landmark judgment of Bahadur v. Bratiya,10 2015 SCC OnLine HP , a single bench of Rajiv Sharma
J. of Himachal High Court, while dealing with an important issue of inheritance of property by daughters
in the tribal areas in Himachal Pradesh, did recognise that daughters in the tribal areas in the State of
Himachal Pradesh shall inherit the property in accordance with the Hindu Succession Act, 1956 and not
as per customs and usages in order to prevent the women from social injustice and prevention of all
forms of exploitation, however the decision of the SC in Kamla Neti case does not recognise the
succession rights of a female heir belonging to a tribal community in view of the exemption provision
contained in section 2(2) of the said Act, however the apex court has made an effort that such rights of
tribal female heirs are recognised by directing the Central Government to look into the matter and make
relevant changes in the said Act, so that the female heirs in tribal communities get the same rights which
are available to non-tribal women. The demand for a separate tribal code to govern the personal laws for
the Sarna tribal community has also been raised by many activists and some prominent tribal leaders .
Different tribal groups have been holding rallies and gatherings to fight for this demand for many years
in Jharkhand and other states. The codification of a separate tribal religion may give tribal customary
laws more legitimacy, but any process that tries to codify the custom must be performed considering the
consequences of not only the codification but also validating many gender-inequitable practices. If
codifications were to be done, it would require to be done through consultation with the community and
other relevant stakeholders.11 The code would have to be made in line with constitutional values, in order
to strike the right balance between equity considerations, universal rights, and cultural sensitivities to
improve the condition of tribal women in India. What we need to remember is that the Adivasi women
experience systemic discrimination in society majorly for two reasons. Firstly, they are at a considerable
disadvantage since they belong to a section of society that is often socially and geographically segregated
and Secondly, their marginalisation the result of gender-based oppression which is compounded by a
rigid social structure and patriarchal norms that prevent them from asserting their rights to claim an
equitable share of ancestral property. Low literacy rates pose another barrier. While the State’s
inclination to maintain the status quo can be detrimental to the legitimate interests of Adivasi women,
the other approach undermines the distinct identity of the tribes which is safeguarded by the Fifth and
Sixth Schedules of the Constitution. The pursuit of a balanced solution that protects tribal women’s
rights while respecting the constitutional safeguards granted to the tribes is of paramount importance.

10
Bahadur v. Bratiya, 2015 SCC OnLine HP
11
Parwez, M. “CUSTOMARY LAW AND WOMEN’S EMPOWERMENT: CASE OF DIMASA AND KARBI
OF ASSAM.” Proceedings of the Indian History Congress, vol. 71, 2010, pp. 1196–207. JSTOR,
http://www.jstor.org/stable/44147588. Accessed 4 Apr. 2024.
Achieving a delicate balance between gender equality and cultural heritage would necessitate thorough
deliberation and the implementation of legal reforms on the part of the Union law ministry that must
consider the distinctive circumstances and aspirations of tribal communities while addressing this issue.
 BIBLIOGRAPHY

CASES:

• Kamla Neti v. Special Land Acquisition Officer, 2022 SCC OnLine SC 1694
• Madhu Kishwar vs. State of Bihar (1996) 5 SCC 25
• B. Premanand vs. Mohan Koikal (2011) 4 SCC 266
• Vineeta Sharma vs. Rakesh Sharma (2020) AIR 3717 (SC)
• All-India Report on Agriculture Census 2015-16
• Butaki Bai v. Sukhbati 2006(2)MPHT60(CG)
• Labishwar Manjhi vs. Pran Manjhi and Ors 2001(1)BLJR30
• Bahadur v. Bratiya, 2015 SCC OnLine HP

ARTICLES

• D. N. “Significance of Women’s Position in Tribal Society.” Economic and Political Weekly,

vol. 23, no. 26, 1988, pp. 1311–12. JSTOR, http://www.jstor.org/stable/4378660. Accessed 3
Apr. 2024.
• Halder, Debarati, and K. Jaishankar. “PROPERTY RIGHTS OF HINDU WOMEN: A
FEMINIST REVIEW OF SUCCESSION LAWS OF ANCIENT, MEDIEVAL, AND
MODERN INDIA.” Journal of Law and Religion, vol. 24, no. 2, 2008, pp. 663–87. JSTOR,
http://www.jstor.org/stable/25654333. Accessed 3 Apr. 2024.
• Parwez, M. “CUSTOMARY LAW AND WOMEN’S EMPOWERMENT: CASE OF
DIMASA AND KARBI OF ASSAM.” Proceedings of the Indian History Congress, vol. 71,
2010, pp. 1196–207. JSTOR, http://www.jstor.org/stable/44147588. Accessed 4 Apr. 2024.