Courts, Tribal Customs and Women's Rights: Oraon Succession

The Lift Line

“In such situations, a tribal woman seeking property rights stands at a crossroads.” (Shalini Saboo, The Hindu)

Why This Editorial Matters for Your Exam

In the news: In an op-ed in The Hindu of 22 October 2026, “Courts, tribal customs and women’s rights”, Shalini Saboo, Junior Fellow, Centre for Contemporary Studies, Prime Ministers Museum and Library, Teen Murti House, New Delhi, reads the Supreme Court’s judgment of 9 July 2026 in Bejla Oraon v Kali Das Oraon & Ors, a dispute over the succession to Oraon tribal land that began in the courts at Gumla, Jharkhand, as a case where legal pluralism “often defaults to patriarchal interpretations at the local level” and keeps tribal women outside gender-equal succession law.

For background, read our 3 October note on the Gujarat Uniform Civil Code, which leaves Scheduled Tribes within the meaning of Article 366(25) read with Article 342 outside that Code.

GS Paper 1: role of women; social empowerment; tribal society and kinship. GS Paper 2: the Constitution (Articles 13, 14, 15, 342 and 366(25)); the judiciary; mechanisms for the protection of vulnerable sections. Essay: tradition and equality.

UPSC Relevance. Prelims: Article 342 and Article 366(25); section 2(2) of the Hindu Succession Act, 1956; Article 13(3)(a) on custom as “law”; PESA, 1996; the Chota Nagpur Tenancy Act, 1908; the ghardamad custom; the Kamla Neti (2022) and Nawang (2025) rulings. Mains: legal pluralism versus gender justice, how courts test a claimed custom, tribal land and identity, and whether change should come from Parliament, the Central Government or the community.

Background and Context

The dispute, stage by stage

What the Court held

• Who must prove a custom. The Bench said that “those who allege a custom must be the one to prove it”. The High Court had reasoned that since no bar against adoption by an uncle-in-law was established, no adverse inference could be drawn; the Supreme Court held that the absence of evidence disproving a customary bar cannot substitute for proof of the custom itself.
• What the custom allows. The institution of ghardamad in Oraon customary law was not in dispute, and the custom of a ghardamad acquiring rights in his father-in-law’s property was proved. But a ghardamad acquires succession rights when he is adopted into the household by the last male owner or his widow. “It is nowhere established that an uncle-in-law can adopt his niece’s husband as his ghardamad within the prevalent customary law”, the Bench observed.
• The standard of proof. The party alleging a custom must strictly prove its existence, long usage, certainty and reasonableness; general observations cannot replace the strict proof required under section 48 of the Evidence Act, 1872.
• The duty of a High Court. Where a substantial question of law is framed under section 100 of the Code of Civil Procedure, the High Court must answer it on the merits, not dispose of it by pointing to concurrent findings below.
• The result. “…in the absence of a ghardamad or any other male heir directly related to the land owner i.e. the male members of the family, the nearest male agnate will have the right in the property.” The partition deed between the niece and the uncle-in-law was held to be non-est.
• What the Court relied on. S.C. Roy’s ethnography of the Oraons; Halsbury’s Laws of England; and precedents including Gokal Chand v Parvin Kumari (1952).
• What was not in issue. It was undisputed that under the applicable custom daughters have no independent right of inheritance; as the Court described the custom, they are entitled only to maintenance if there is no son.

Where tribal succession law stands

• The statutory exemption. Section 2(2) of the Hindu Succession Act, 1956 keeps members of Scheduled Tribes outside the Act unless the Central Government, by notification in the Official Gazette, directs otherwise. The door to change is a notification, not a court order.
• Madhu Kishwar v State of Bihar (decided 17 April 1996). One petitioner, Juliana Lakra, was described in the judgment as “an Oraon Christian tribal woman from Chhota Nagpur area”. The petitioners sought a declaration that sections 7, 8 and 76 of the Chota Nagpur Tenancy Act (6 of 1908) are ultra vires Articles 14, 15 and 21, and the question before the Court was “whether female tribal is entitled to parity with male tribal in intestate succession?”
• Kamla Neti v Special Land Acquisition Officer (9 December 2022). A Bench of Justices M.R. Shah and Krishna Murari could not give a tribal woman a share, by survivorship, in compensation for her ancestors’ acquired land, because section 2(2) excludes her. “It is for the legislature to amend the law and not the Court”, it said, while observing that “Female tribal is entitled to parity with male tribal in intestate succession” and that “it is high time for the Central Government to look into the matter and if required, to amend the provisions of the Hindu Succession Act”.
• Nawang v Bahadur (2025). A Bench of Justices Sanjay Karol and Prashant Kumar Mishra reiterated that the Act does not apply to members of Scheduled Tribes, and set aside a 2015 direction of the Himachal Pradesh High Court that daughters in the State’s tribal areas would inherit under the Act and not tribal customs. The Court found the direction contrary to section 2(2), and outside the issues framed before the High Court.
• PESA, 1996. The Provisions of the Panchayats (Extension to the Scheduled Areas) Act came into force on 24 December 1996 in 10 States. Under its Section 4, State legislation on Panchayats in Schedule V areas must be “in consonance with the customary law, social and religious practice and traditional management practices of community resources” (Section 4(a)).

The Issue, Decoded

The Analysis

1. An old debate reopened. The verdict, the author writes, “has once again brought the debate over property rights in tribal societies to the fore”, touching customary laws, community sanctions, Adivasi identity, constitutional rights and the role of the courts. Tribal women “stand at the intersection of this interplay”. In most tribal societies, she says, “with some exceptions among tribes in the northeast”, women are not granted ownership of land, because clan-based, patrilineal kinship ties land to kin and ancestors.

2. Custom rooted in belief. Drawing on S.C. Roy’s book on the Oraons, the author explains the link between male ancestors and the spirits of the dead, who, in the passage she quotes, “are naturally solicitous about the preservation in the hands of their male descendants of the property they have left behind”. This belief, she writes, underpins the Oraon practice of keeping land not only from daughters but also from males outside the clan.

3. Her reading of the judgment’s premise. The author reads the judgment as resting on the premise that an Oraon ghardamad “can be adopted only if he belongs to his own clan and duly agreed by other agnates favouring his claims to inheritance”.

4. Ethnography and the settlement record. Roy’s records and the colonial Survey and Settlement Reports of Chota Nagpur, she argues, are not in contradiction but represent “anthropological custom versus administrative revenue law”, which courts later synthesised into tribal jurisprudence. In her account, the settlement reports of the early 1900s wrote these customs into the records of rights to streamline rent collection and prevent land alienation, and recognised the ghardamad as an heir, while settlement officers held that his status could not violate the protective provisions of the Chota Nagpur Tenancy (CNT) Act, 1908. She finds it significant that the judgment speaks of a ghardamad’s rights to the rajhas land of his father-in-law, rather than to the bhuinhari land of his in-laws’ family.

5. A rigid burden of proof. “By enforcing a rigid burden of proof regarding tribal customs, the Court upheld the agnatic line of succession.”

6. Where pluralism defaults. Legal pluralism is meant to protect the cultural autonomy of Scheduled Tribes, the author writes, but “it often defaults to patriarchal interpretations at the local level”. With no codified statutory personal laws for Scheduled Tribes, the courts had to rely on “unwritten, historically male-dominated customs” to decide property rights.

7. The crossroads. A tribal woman, she argues, is excluded by her tribal status from gender-equitable laws “such as the Hindu Succession Act, which grants daughters coparcenary rights”, and her access to her own land “may also become contingent on the legal validation of her husband”. Her conclusion: the verdict “effectively prioritises the preservation of “pure” indigenous customs over individual rights and the principles of gender justice enshrined in Articles 14 and 15 of the Constitution”. That is the author’s reading of the outcome; the Court’s reasoning, as reported, turns on proof of custom, the Evidence Act and section 100 of the Code of Civil Procedure.

Data and Institutions Vault

Prelims-grade facts:

The case:

• Bejla Oraon v Kali Das Oraon & Ors: Supreme Court, decided 9 July 2026; Bench of Justices Sanjay Karol and N. Kotiswar Singh.
• The party alleging a custom must prove it; the absence of a proven bar does not establish a custom.
• A custom must be strictly proved: existence, long usage, certainty and reasonableness (section 48, Evidence Act, 1872).
• Section 100, CPC: a High Court that frames a substantial question of law in second appeal must answer it.
• No Oraon custom was proved letting an uncle-in-law adopt his niece’s husband as ghardamad; the land went to the nearest male agnate.
• Courts below: Munsif and First Additional District Judge, Gumla; Jharkhand High Court (10 June 2024).

The law:

• Article 342(1): the President notifies Scheduled Tribes; Article 342(2): Parliament may include or exclude by law.
• Article 366(25): defines Scheduled Tribes by reference to Article 342.
• Section 2(2), Hindu Succession Act, 1956: the Act does not apply to STs unless the Central Government notifies otherwise.
• Article 13(3)(a): “law” includes a custom or usage having the force of law.
• PESA, 1996: in force from 24 December 1996 in 10 States; Panchayat laws in Schedule V areas must conform to customary law.

The cases:

• Madhu Kishwar v State of Bihar (17 April 1996): sections 7, 8 and 76 of the Chota Nagpur Tenancy Act, 1908 challenged under Articles 14, 15 and 21.
• Kamla Neti (9 December 2022): tribal daughter denied survivorship under section 2(2); the Central Government urged to look into amending it.
• Nawang v Bahadur (2025): the Act does not apply to STs; a Himachal Pradesh High Court direction set aside.

Watch the trap: The Court did not decide that daughters cannot inherit; that rule of Oraon custom was undisputed. The equality critique under Articles 14 and 15 is the author’s, not the Court’s. Section 2(2) lets the Central Government extend the Act by notification, while adding a tribe to or removing it from the ST list needs a law of Parliament under Article 342(2).

The Debate

The author’s case. With no codified personal law for Scheduled Tribes, courts fall back on unwritten customs shaped by patrilineal kinship. A strict burden of proving custom then works for the male line: it upheld the agnatic line here, and it leaves a tribal woman’s claim to land dependent on her husband’s recognised status. Legal pluralism, meant to protect tribal autonomy, ends up putting custom above the equality of Articles 14 and 15.

The other side.

• A narrow question of proof. The Court decided between two claims to one holding: a male agnate’s, and a ghardamad claimant’s that rested on adoption by an uncle-in-law. The rights of daughters were not in issue; their exclusion under the custom was undisputed.
• A rule that guards both sides. Requiring whoever alleges a custom to prove it is a general rule of evidence. It protects any claimant, man or woman, against a custom asserted without proof of long usage and certainty.
• Courts have pointed to the legislature. In Kamla Neti (2022) the Court said that amending the law is for the legislature and urged the Central Government to look into it; in Nawang (2025) it set aside a High Court direction that applied the Act to tribal daughters. A court that rewrote custom to reach the same end would collide with section 2(2).
• Autonomy is also law. PESA asks Panchayat laws in Schedule V areas to conform to customary law and traditional practices. Tribal land laws such as the CNT Act exist, as the author herself notes, to prevent land alienation; a uniform rule imposed from outside could unsettle that protection.

The balanced verdict. The author is right that the outcome rests on customs that give tribal women no independent share, and that a strict proof rule cannot by itself make them fairer. But the remedy she points towards lies less with the courts, which have repeatedly said the change is for the legislature, than with the Central Government’s power of notification under section 2(2) and with the communities themselves.

Way forward.

• The Central Government can weigh the notification route under section 2(2), which the Supreme Court asked it to look into in 2022, after consulting tribal communities and their institutions.
• Customs can be recorded with the participation of tribal women, so that what a court accepts as established custom reflects their claims as well as those of male agnates.
• Any reform can keep tribal land protections intact, so that equality for daughters does not become a route for land to pass out of the community.

How to Think About This

Ask three questions of any case on custom and equality. First, what did the court actually decide? Here it was proof of one claimed custom between two claimants, not the rights of daughters, so separate the holding from the critique. Second, who can change the rule? A court applies section 2(2); the Central Government can notify the Act’s extension; only Parliament can change the ST list under Article 342(2); communities shape custom. Third, whose voice is in the record? A custom is proved from ethnographies, settlement reports and testimony; ask whether women’s practice and claims appear in them.

Diagram-in-Words

Takeaway Box

• Core idea: with Scheduled Tribes outside the Hindu Succession Act, courts decide tribal succession by custom, and a strict proof rule upheld the Oraon male line on 9 July 2026; the author says this puts custom above tribal women’s equality.
• Key fact: section 2(2) of the Hindu Succession Act, 1956 excludes STs unless the Central Government notifies otherwise; the Supreme Court found no proved custom of adoption of a ghardamad by an uncle-in-law.
• Counterpoint: daughters’ rights were not decided; the Court has said the change is for the legislature (Kamla Neti, 2022), and PESA asks Panchayat laws to respect customary law.
• Mains use: legal pluralism, gender justice for tribal women, proof of custom, Articles 13, 14, 15 and 342, section 2(2), PESA and tribal land protection.

Sources:

• Shalini Saboo, “Courts, tribal customs and women’s rights”, The Hindu, 22 October 2026
• Supreme Court, Bejla Oraon v Kali Das Oraon & Ors, judgment of 9 July 2026, as reported by LiveLaw (9 July 2026), Verdictum (9 July 2026) and SCC Online (14 July 2026)
• Constitution of India, Articles 13, 14, 15, 342 and 366(25); Hindu Succession Act, 1956, section 2
• Supreme Court, Madhu Kishwar v State of Bihar, 17 April 1996; Kamla Neti v Special Land Acquisition Officer, 9 December 2022 (SCC Online report); Nawang v Bahadur (LiveLaw report, 22 October 2025)
• Ministry of Panchayati Raj, concept note on the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996

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