The Tribals are governed by their Customary Laws

subhadra khaperde
Posted July 1, 2012 from India

In an article, “Does Hindu Marriage Act cover ST ?” in the Indore daily news paper, Hindustan Times, Sunday , 1 July 2012 it is stated that, “tribals are governed by no law as far as their marriage and divorce are concerned”. This is a gross travesty of the truth. The Bhil and Bhilala tribals of Madhya Pradesh, India, may not have a written law but they do have their own customary law in this regard. In disputes regarding marriage there is a system in which the contending parties sit down along with other tribals of their community in open panchayat meetings for resolution. Once the resolution is reached then those attending stand witness to the agreement and even if this is not written down it stands as a ruling that has to be obeyed. In the case where the couple decides to separate the decision of the panchayat is the decree of divorce . These days with the increase in literacy among the tribals, the agreements reached are often written down and signed by some of the panches and the contending parties and this becomes the decree of divorce. The article discusses the law of marriage in the case of divorce between one male tribal Sujit Baghel and his wife Meenakshi Gawli. This was first considered in the community panchayat in Kukshi in Dhar district from where Meenakshi hails. But the Baghels, who are a powerful political family, refused to accede to the demand of Meenakshi for divorce on the grounds of domestic violence being perpetrated on her by Sujit. The Baghels tried to use their political influence to overrule the tribal community panchayat. This was not acceptable to Meenakshi’s family and so they were forced to approach the court. Thus, this is not a case of tribals not having marriage laws but that of a politically powerful male tribal disobeying the traditional tribal marriage laws which stand up for the rights of tribal women. The tribals have many customary laws that govern their lives and livelihoods but it is the tragedy of modern India that these have been systematically ignored by the government and the courts. The case is now being heard in the High Court of Indore and the Baghels are opposing divorce on the ground that the Indian marriage law does not cover tribal marriages. There is a clear mala fide intention to deny justice to Meenakshi in both the traditional and modern legal forums. Ideally, in this case, the High Court should send the disputants back to the tribal panchayat upholding its supremacy under the Fifth Schedule of the Constitution which gives cognisance customary tribal laws.

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