No ‘second class heirs’: Punjab and Haryana High Court blocks tribal custom of denying property to widows

Justice Nidhi Gupta heard the matter on April 9.

“Customary law is also ‘law’ as appears in Article 13 of The Constitution of India and as such, any customary law such as the present one which seeks to create such discrimination between the male and female legal heirs not to even speak of second class legal heirs and widow of a deceased male cannot be sought to be enforced by any civil court post the enforcement of the Constitution of India,” the Punjab and Haryana High Court said on April 9.

The order added that it cannot be lost sight of that the petitioner, in his entire plea, has based his entire claim on an antiquated custom.

Background

• The dispute centered on the estate of the petitioner’s brother, who died childless in 2015.
• The petitioner sought a declaration that a sale deed executed by his brother’s widow in favour of a third party was null and void.
• He contended that under the agricultural customs of the Meo tribe in the Nuh region, a widow only holds a limited life estate for maintenance and has no right to alienate ancestral or non-ancestral land without the consent of the nearest male relatives.
• The petitioner argued that as a “nearest collateral,” the estate of the brother should devolve upon him rather than the widow.
• He claimed that according to the Riwaaj-i-aam, daughters and widows are marginalised in matters of property succession to preserve the agnatic theory of the family.
• Agnatic descent is a system of tracing familial descent and inheritance exclusively through the male line.
• The petitioner filed a revision plea before the Punjab and Haryana High Court challenging orders from the civil judge, Punhana, and the additional district judge, Nuh, which had declined his request for an ad interim injunction.

Court’s findings

• The petitioner’s submission that the issue in the present hand pertains to the Muslim Personal Law is misleading, as a bare perusal of the pleadings would show that the case is based on an alleged ‘customary’ law pertaining to the Meo tribe in the Nuh region.
• It is a trite law that ‘Personal Law’ and ‘Customary Law’ are two separate fields, the Punjab and Haryana High Court held.
• The former is based upon scripture and codified law, which applies to all the denominations of faith, whereas customary law is an aberration from the general personal law.
• A bare perusal of the impugned orders reveals that the same are well-reasoned orders passed because the petitioner was relying upon an alleged customary law which would firstly have to be proven strictly, the Punjab and Haryana High Court noted.
• Even if the custom pleaded in question has any application to succeed, the petitioner would firstly have to show that the customary law was being enforced throughout its inception, and even if a few instances of break in custom can be shown by the defendant in the civil suit, the same would lose its entire validity.
• Even if the custom is shown to exist, then it would have to be shown that the property in question would be an ancestral one and that, thirdly, the sale was in the absence of a legal necessity.