The Himachal Pradesh high court’s landmark judgment on Friday has come as big relief to women, who had been denied the right to inherit ancestral property, particularly in the tribal regions of Lahaul Spiti and Kinnaur. The judgment has an implication for around 6% of the state’s population that is tribal.
The judgment has come on a case, dating back to 1996. A Gaddi tribal, Rasalu, left his family entangled in a legal battle over the right to his property. His son Bahadur challenged the mutation of the land, registered in the name of all the six siblings, claiming that in his tribe, property could be ‘given’ only on to sons, and daughters had no legal rights to the same. In the lower judiciary, Chamba’s senior subjudge in 2002 went in favour of the appellant. This judgment was challenged and the case went all the way up to the high court, where justice Rajiv Sharma gave a 60-page order allowing tribal women to inherit property.
The court held that the tribal women are entitled to inherit property as the ‘Equality of Rights’ was a constitutional right and shall prevail over statutory rights.
The court also observed that the provisions to the Hindu Succession Act, 1956, could not come in the way of inheritance of property by daughters belonging to tribal areas, where Hinduism and Buddhism is followed. Justice Sharma added that the Hindu Succession Act should be read as consistent with the constitutional goal of removing gender-based discrimination targeted at the economic empowerment of Hindu women. It added that women have the right to elimination of gender-based discrimination, particularly with respect to property, so as to attain economic empowerment.
“The Constitution of India is a living document... judicial powers must be exercised to interpret and enforce fundamental rights in an area where the will of the elected legislature has not expressed itself,” the order adds.
THE RIGHT COMES AFTER A LONG TIME
The tribes in Himachal are Gaddis, Bhoti, Kinnauwaras, Gujjar, Jhadh Khampa, Lamba Panghwals, Swampla, Bhera, Damba and Joba. Most of these tribes inhabit Kinnaur, Lahaul Spiti and Chamba, while the Gujjars and Gaddis are scattered across the state.
The genesis of the discrimination goes back to Wajib Ul Urj, a law written in 1926, for Kinnaur and Lahaul and Spiti. This custom allowed only male members to inherit ancestral property, and was being followed even after the amended Hindu Succession Act, 1956, which grants equal rights to men and women, became the law of the land.
Former governor Urmila Singh, a tribal leader from Madhya Pradesh, was a prominent voice that spoke in favour of the Right to Property being granted to tribal women.
The issue has also been getting sustained media attention and some non-government organisations raised the issue. Mahila Kalyan Parishad, a woman group, has been campaigning to secure the rights of tribal women and launched a signature campaign. A memorandum in this regard was submitted to president Pranab Mukherjee in 2013.
VIEWS FROM THE COMMUNITY
In the Gaddis, the semi-pastoral tribe, one of whose woman member, challenged the law, ironically, women have played a crucial role — as responsibilities ranging from looking after elders and kids, crops, agriculture and scores of other works rests on them.
The men live a nomadic life searching for pastures to graze their livestock. They reside on either side of the Dhauladhar range of Himalayas. However, their women are deprived of all property rights.
The tribe has made Chamba its home and also reside in considerable number in Baijnath, Palampur, Dharamsala, Shahpur and Nurpur constituencies in Kangra district.
A social worker Medh Singh, who works on various issues related to tribal community in Bharmour, said, “Women being denied property right is a tradition. It is debatable that how was the law framed and why was it framed. However, I welcome the judgment.”
In Gaddi community, Medh Singh added, girls demanding share in parental property was not considered a good thing.
“The high court judgment is significant as this will ensure Right to Equality for girls,” he said.
AN EXCEPTION: WOMEN GRANTED PROPERTY BEFORE HC DECISION
Meanwhile, Gaddis living to the south of Dhauladhar range had broken away from the tradition many years ago.
“On this side of Dhauladhar, the tradition has changed. Parents give equal rights to their children and there are so many such cases,” said Kamla Patyal, the president of the Dharamsala municipal council and a member of the Gaddi community.
“It also depends on the individual viewpoint and how much people are aware about their rights. In some cases they still consider it wrong if a girl demands share in property while certain sections of society are are at ease with it,” said Patyal.
Though effective succession laws had been in place for long, she said, the high court judgment still marked a new beginning.
“Girls have all the right to property and should get it. Those women who don’t want a share must have their reasons,” said Patyal.
The Bharmour side of the Dhauladhar Range is called ‘Gaderan’ (the native land of Gaddis) while the Kangra side is called ‘Jandher’ (the land they migrate to in winters).