Bombay HC Follows Sabarimala Judgment To Rule Against Presumption Of Customary Practise Excluding Daughters' Inheritance [Read Judgment]

The Bombay High Court Nagpur bench has followed the Supreme Court's judgment in Sabarimala case to hold that no presumption regarding the existence of customary practise in tribal communities to exclude daughters from inheritance can be drawn.

"An insistence that a female tribal who is a natural legal heir must plead and then prove that under the customary law, she is not excluded from inheritance would run counter to the Constitutional imperative that the age old apathy, prejudices and gender discrimination directed against women must be addressed and minimized if not entirely eradicated", held Justice Rohit B Deo in a second appeal arising out of a partition suit.

The suit was filed for partition of the estate of late Bapurao Kodape by his daughters, who belonged to Gond community, a Scheduled Tribe. Their brothers, who were defendants in the suit, denied the plaintiffs' right stating that in Gond community, females were customarily excluded from inheritance. They also contended that provisions of Hindu Succession Act, 1956 were not applicable to tribes.

The trial court held that then existence of such a custom was not proved by defendants, and decreed the suit. The decree was confirmed in first appeal, holding that in the absence of proof of custom, principles of Hindu succession will apply.

The defendants further appealed to the High Court. Before High Court, their contention was that the burden was on the plaintiffs to establish that females were not excluded from inheritance.In the absence of plaintiffs failing to discharging such burden, it has to follow that they were customarily excluded from inheritance- this was the gist of argument in second appeal.

The Court made it clear in the judgment that it was not called upon to examine the validity of such a custom, as its existence was not established by either of the parties. The question before the Court was upon whom the burden lie to establish the existence of the custom. 

To arrive at the conclusion, the Court referred to the judgment of the Supreme Court in Indian Young Lawyers' Association case, which held the practise in Sabarimala temple barring the entry of women in the age group of 10 to 50 unconstitutional.  Referring to the judgment authored by Justice Chandrachud, which observed that 'individual was the basic unit of the constitution' and that 'constitution had a transformative vision which demands that existing structures and laws be viewed from the prism of individual dignity', the Court held : 

Gender inequality is an anathema to constitutional philosophy and morality. Obliteration of inequality is a cherished goal of the Constitution of India. A custom or usage which prima facie is not gender neutral would have to muster the test of Articles 14,15 and 21 of the Constitution of India.

The judgment also made reference to the apex court judgment in Madhu Kishwar v State of Bihar, which had upheld the customary law of inheritance in a tribal community to exclude women from the line of succession. However, the present case was not dealing with the validity of custom as such, but the rule of presumption to the followed with respect to its existence. Regarding that, the Court observed :

If a female tribal who is a natural legal heir seeks equal share in the property of her father or mother, it would be impermissible for the Court to start with the assumption that the customary law governing the tribe excludes the females from inheritance and to then insist that the female tribal must plead and prove a custom that she is not so excluded. 

The judgment was fortified with the SC precedent Mohammad Baqar vs Naimun­ Nisa Bibi, which held that the burden of proving a custom in derogation of the general law being heavily on the party who sets it up.

Based on these conclusions, the appeal was dismissed.

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