Codification of customary laws: Need of the hour

Two recent judgments by the Jharkhand High Court bring to light the fact that not much has been done in the area of codification of customary laws in a Fifth Schedule state.
Codification of customary laws: Need of the hour
Tribals (Representative Image)

The Jharkhand High Court passed two landmark judgments in the recent past in the area of customary laws. On April 22 this year, the High Court historically decided that women of the Oraon tribe in Jharkhand shall now be entitled to a share in their paternal property as their male counterparts.

The landmark judgment in the case of Prabha Minz v. Martha Ekka & Ors authored by Justice Gautam Kumar Choudhary was delivered after the hearing of the second appeal petition in the matter.

During the hearing of the appellate petition, the defendant failed to prove that there existed any such custom in the Oraon tribal community of Jharkhand where daughters are deprived of inheritance rights in the paternal property. The judgment of the High Court accepted the appellate petition and cancelled the orders of the subordinate courts and first appellate court which had decided the opposite.

It must be noted here that as per the customary law of the Oraons, the property is transferred only in the male lineage. However, the stated order is based on the fact that there is no uniformity in the application of customary laws of the Oraons in court cases relating to property inheritance matters. There have been cases where daughters have been kept out of the male lineage, and others where they have been allowed a share in the paternal property.

Another landmark judgment is of Baga Tirkey v. Pinky Linda and Niraj Karmali passed in April 2021, which pertained to Section 7 of the Family Courts Act, 1984. A Division Bench of Justices Aparesh Kumar Singh and Anubha Rawat Chowdhary of the Jharkhand High Court held that Section 7, which is related to jurisdictional rights, is a secular law. Every custom needs to be proved in a family court. As per the customary law applicable to the tribal community, the family court adequately possesses the power to decide on a matter of divorce.

The matter before the Court was of a person from the Oraon tribe of the State who got married in the year 2015. Seeking separation from his wife, he had filed a petition in a Ranchi family court for divorce. The family court had dismissed the petition, stating that it was not maintainable as the court was not eligible to decide on a matter of customary law. It also stated that since the customary laws are not codified, they do not fall within its jurisdiction. The petitioner subsequently challenged the order of the family court before the High Court, which allowed the appeal.

Both these cases signify the importance of customary laws in states of the country like Jharkhand, where 26.2 per cent of the population comprises the indigenous community.

Undoubtedly, whenever a judicial matter relating to marriage, succession or land-related issues arises, it is expected that it be sorted out through the application of customary laws as the entire tribal community is governed through these laws. However, it is unfortunate that none of the thirty-two tribes residing in Jharkhand have their customary laws in a codified form. As a result, such complex legal matters crop up before the courts, which have to arrive at a special decision after a deep and elaborate perusal of their jurisdiction and the relevant customs.

When tribals have devised their own systems of adjudication in the form of ‘parha panchayats’, why does the need for approaching the courts arise? When there is contempt of orders passed by these traditional adjudicating authorities, one is left with no option but to go to a court of law. These courts are then tasked with finding the relevant customary law takes place.

However, it has often been found that there is a dearth of codified material available for reference. It has been noted that whenever a case pertaining to customary law comes before the court of laws in Jharkhand, books like The Customary Law of the Mundas and the Oraons by JP Gupta and Mundas and their Country by SC Roy are referred to. What about the customary law of the other tribes of the State apart from these two? Are these two books sufficient for the arriving at decisions in cases relating to customary laws?

Article 13 of the Indian Constitution states that customary laws in the Scheduled Area states must be treated on the same footing as civil laws. If customs are proved, they will transform into laws as per this provision. It is essential to understand here as to when a custom transforms into a law. Custom is one which has been followed by society for aeons and from which no member of society can separate himself. For a custom to be legal, it must be ancient, certain, continuous, rational, moral and not opposed to public policy. Only if a particular custom qualifies these parameters, can it be accepted as a law. All national and international courts play a major role in the application of customs. A court of law through its discretion can verify the legality of a custom.

The judgments delivered in the above two cases by the Jharkhand High Court bring to light the fact that not much has been done in the area of codification of customary laws in a State which falls well within the purview of Schedule V area of the country. Even if some work has been done in this direction by the State Tribal Research Institute, it is from an anthropological angle. There appears to be a huge vacuum when it comes to looking at the issue from a legal angle. Perhaps it is time for institutions like the Jharkhand Judicial Academy and the National University of Study and Research in Law (NUSRL) to take the initiative in this arena. Research projects should be promoted by these institutes and law students should be involved. The exercise would facilitate the easy disposal of thousands of legal matters of the tribals in the State. If the exercise of codification of customary laws is done, it can also be a huge contribution in preserving their heritage.

(The author is an Assistant Professor at the Institute of Legal Studies at Ranchi University. She has been awarded a doctorate from the Department of Contemporary and Tribal Customary Laws of the Central University of Jharkhand).

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