MADHU KISHWAR AND ORS. ETC. versus STATE OF BIHAR AND ORS.

Citation: [1996] SUPP. 1 S.C.R. 442 · Decided: 07-04-1996 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Disposed off

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Judgment (excerpt)

A 
MAOHU KISHWAR AND ORS. ETC. 
v. 
STATE OF BIHAR AND ORS. 
APRIL, 7, 1996 
B 
[KULDIP SINGH, K. RAMASWAMY AND M.M. PUNCHHI, JJ.] 
Hindu Succession Act, 195~Section 3(2}-lndian Succession Act, 
192~Section 3-Power to exempt any race, sect or tribe from operation of the 
Act-Tribals--Whether provisions of these Acts are applicable to custom-
C govemed tribals-Held, No-Customs of tribal inhabitants excluding tribal 
women from inheritance of land or property-Whether discriminatory-Held, 
No. 
Chota Nagpur Tenancy Act, 1908-Sections 7 and 8-T1ibals-Ex-
clusive right of male succession-Whether provisions of Sections 7 and 8 can 
D be held as violative of Article 14 of the Constitutiol!-Held, No-Constitu-
tional right to livelihood of females-Intervening rights uf female depend-
ents/descendants. 
E 
F 
G 
Constitution of India-Articles 14, 15, 21-Tnbals--Custom of intestate 
succession-Whether violative of A1t. 14, 15, 21-Held, No. 
The petitioners filed these writ petitions challenging the provisions of 
Sections 7, 8 and 76 of the Chota Nagpur Tenancy Act, 1908, as discriminatory 
and u~fair against women and therefore ultra vires Articles 14,15 and21 of the 
Constitution of India alleging that the customary law operating in the Bihar 
State and other parts of the country excluding tribal women from inheritance 
of land or property belonging to father, husband, mother and confennent of 
right to inheritance to the male heir or linear descendants being found solely 
on sex is discriminatory. 
Disposing of the writ petitions, this Court 
HELD : per majority (M.M. Punchhi for himself and Kuldip Singh, 
JJ.) 
1.1. General rule of legislative practice is that unless there is anything 
repugnant in the subject or context, words importing the masculine gender 
H used in statutes are to be taken to include females. But in matters of 
442 
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MADHU KISHWAR v. STATE 
443 
succession the general rule of plurality would have to be applied with A 
circumspection. The provision of Section 3(2) in Hindu Succession Act 
appears to have been inserted ex abundant/ cautela. Even under Section 3 
of the Indian Succession Act the State Government is empowered to 
exempt any race, sect or tribe from the operation of the Act and the tribes 
of l\1undas, Oraons, Santals etc. in the State- of Bihar, who arc included, B 
have been so exempted. Thus neither the Hindu succession Act, nor the 
Indian Succession Act, nor even the Shariat Law is applicable to the 
custom-governed tribals. An custom, as is well recognized, varies from 
people to people and region to region. [476-D-F] 
1.2. Considering divisions and visible barricades put up by the 
C 
sensitive tribal people valuing their oMI customs, traditions and usages, 
judicially enforcing on them the principles of personal laws applicable to 
others, on an elitist approach or on equality principle, by judicial activism, 
is a difficult and mind-boggling effort. Under the circumstances it is not 
desirable to declare the customs of tribal inhabitants as offending Articles 
14, 15 and 21 of the Constitution and each case must be examined when 
full facts are placed before the Court. [476-G-H; 477-C] 
13. Rules of succession are indeed susceptible of providing differen-
tial treatment, not necessarily equal. Non-uniformities would not in all 
events violate Article 14. Judge- made amendments to provisions, over and 
above the available legislature, should normally be avoided. There is no 
scope thus in reading down the provisions of section 8 and even that of 
section 7 of the Chhota Nagpur Tenancy Act, 6 of 1908 so as include female 
descendants alongside the male descendants in the context of sections 7 
and 8. It is only in the larger perspective of the Constitution can the answer 
to the problem be found. [477-G-H; 482-G) 
1.4. Traditionally and historically, the agricultural family is iden-
tified by the male head and this is what Sections 7 and 8 recognise. But on 
D 
E 
F 
his death, his dependent family females, such as his mother, widow G 
daughter, daughter-in-law, grand-daughter, and other joint with him have, 
under Sections 7 and 8, to make way to male relatives within and outside 
the family of the deceased entitled thereunder, disconnecting them from 
the land and their means of livelihood. Their right to livelihood in that 
instance gets affected, a right constitutionally recognised, a right which the 
female enjoyed in common with the last male holder of the tenancy. It is H 
4

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