Property rights, tribals and the gender parity gap

It is over a month since International Day of the World’s Indigenous Peoples was observed on August 9, but it is still not late to ponder over the rights of India’s indigenous population. The proposition becomes all the more topical following a judgment of the Supreme Court of India on July 17, 2025. In Ram Charan and Ors. vs Sukhram and Ors., the Bench of Justice Sanjay Karol and Justice Joymalya Bagchi equated the exclusion of daughters in ancestral property to be a negation of their fundamental right to equality. Thus, looking at the issue of a tribal woman’s property rights through the lens of gender equality becomes significant. It is a matter of deep gender injustice that most tribal women (except in the north-east where there is matriliny in some tribes) do not have pieces of legislation giving them statutory rights in ancestral property.

Plea of equal share

In this case, the appellant-plaintiffs were the legal heirs of Dhaiya, a Scheduled Tribe (ST) woman in Sarguja district, Chhattisgarh, who sought partition of a property that belonged to their maternal grandfather, Bhajju alias Bhajan Gond. Their mother (one of the six children — five sons and a daughter), they claimed, was entitled to an equal share. The cause of action arose in October 1992 when the defendant refused to make a partition. The appellant-plaintiffs approached the trial court seeking a declaration of title and partition of the suit property, which was dismissed on the ground that no such custom existed in the Gond tribe where female heirs are given rights in ancestral property.

After being rejected by the first Appellate court and Trial court, the plea then came before the Chhattisgarh High Court. In so far as the argument of the appellant-plaintiff that they had adopted Hindu traditions and so be granted such rights according to the Hindu Succession Act, it was held that since there was no evidence on record, the Trial Court and the First Appellate Court had rejected this contention. However, it granted Dahiya’s legal heirs an equal share in the property stating that denying the female heir a right in property under the garb of customs only exacerbated gender discrimination — which the law should weed out.

In Madhu Kishwar and Ors. vs State Of Bihar and Ors. (1996), a petition had raised the issue of parity between female and male tribal members in the matter of intestate succession. This pertained to customary laws excluding women from inheritance of land or property. The majority judgment of the Supreme Court refused to strike down the provisions as violative of the right to equality, stating that this would cause chaos in the existing law.

Laws in Scheduled Five Area States

In matters of marriage, succession and adoption, tribals in Scheduled Areas are governed by their customary laws. Despite women contributing more in farms than the men, none of the tribal customary laws prevalent in the Scheduled Five Area States (which also includes Chhattisgarh, Jharkhand and Odisha) give land inheritance rights to females in ancestral properties. The All India Report on Agriculture Census 2015-16 shows that 16.7% of ST women possess land when compared to ST men (83.3%).

It is also argued that in tribal society, land is a communitarian property, where there cannot be an individual owner. But, it rarely happens that money received against the sale or acquisition of tribal lands goes to the gram sabha of villages. The fear of tribal women marrying non-tribal men, leading to land alienation, is another reason for denying women land inheritance rights. The fact that the nature of land remains indigenous despite its transfer to non-tribal as it happens in forest land is to be understood before any such denial.

Any custom must pass the test of parameters such as antiquity, certainty, continuity, reasonableness and conformity with public policy in order to be transformed into a law. A court of law can verify the legality of a custom based on these. A similar situation arose in Prabha Minz Daughter Of Late Saran Linda vs (A) Martha Ekka Wife Of Late Ajit Ekka (2022), where the Jharkhand High Court historically decided in favour of property rights of women of the Oraon tribe in the State as the defendant failed to prove that there was any custom in the Oraon community of Jharkhand where daughters have been continually deprived of inheritance rights in paternal property.

A case for a separate act

The Supreme Court took an affirmative stand on tribal women’s property rights, in Kamala Neti (Dead) Thr. Lrs. vs Special Land Acquisition Officer, on December 9, 2022, which was one of the first steps towards celebrating the beginning of gender parity in property rights among the tribal women. If Section 2(2) of the Hindu Succession Act, 2005 excludes tribal women from its purview, why not have a separate Tribal Succession Act made for tribals? Codification of tribal laws on the lines of Hindus and Christians can also help resolve the issue substantially.

Shalini Saboo is Junior Fellow, Prime Ministers Museum and Library, Teen Murti House, New Delhi