The piece demonstrates how the custom satisfies both the formative and operative pre-requisites of validity as regards the ancestral property, but is invalid, in its operative pre-requisite, as regards the mother’s personal property because it fails to satisfy the test of constitutional morality.
Globally, the Mizos are among the few communities who practice the custom of patrilineal ultimogeniture, i.e., the inheritance of property by the youngest son. In 2014, the Mizoram Legislative Assembly enacted the Mizo Marriage, Divorce, and Inheritance of Property Act [“the Act”] to formally codify its long-standing customary law, known as “Hnam Dan” in the Mizo language. The Act attempts to secure greater formal equality for the historically oppressed Mizo women. However, it reforms the custom both progressively and regressively.
Presently, mainstream discourse universalizes all women from the North East as a monolithic entity, enjoying equal status in society. However, this is far from the truth: each of the eight North Eastern states have their own customary laws, based on beliefs and traditions peculiar to each community. Patriarchy is pervasive even in these societies. In fact, the isolated geographical location, scarce state resources, and extremely particularized cultural practices of these communities sequester them from exposure to the national women’s movement. Despite this increased vulnerability, mainstream discourse has falsely presumed gender equality in the North-East, generating an attitude of indifference towards the study of customary laws of these North Eastern communities.
Against this background, in this paper, I critically evaluate the custom of patrilineal ultimogeniture in the Hnam Dan. I begin by explaining the custom and its historical evolution. Subsequently, I expose the flaws in the ‘morality’ aspect of the current test for judging the validity of customs, and argue for it to be replaced by constitutional morality. Based on this revised test, I argue the custom is legally valid only as regards ancestral property, and not the mother’s personal property.
The Custom of Patrilineal Ultimogeniture
Position Pre 2014
Mizoram is a patriarchal and patrilineal society. Consequently, in matters of inheritance, the maternal line is completely disregarded: The Mizos follow the custom of patrilineal ultimogeniture, wherein the youngest son, known as Fathu, is considered the rightful heir to ancestral property. The youngest son is treated so because he is obligated to reside with and support his parents till their death: if he fails this duty, he cannot claim his superior right. However, this custom is not ‘strict’, in that the youngest son does not have an absolute claim over the entire ancestral property.
In actual practice, as detailed in Lalchhuana v Romawh, the property is divided among all the sons, provided they are not indang, i.e., have not left their father’s house for a separate establishment. The youngest son has first choice over the articles of the estates he wants. If there is cash, the youngest son would get two shares to one of each of his brothers. Among tribal chiefs, the older sons, when they attain a marriageable age, were to be given a certain interest in the property so that they could establish a separate household for themselves. This custom also provides for an exception where if the deceased’s wife is ready and willing to remain in the house and discharge her duties as mother, nobody should disturb her, especially when there are unmarried or divorced daughters or even grandchildren supporting her. Furthermore, under the custom of Chawmhlum Rokhawm, anyone who supports an owner of the property till his death automatically acquires a share in his property.
Position Post 2014
The Act continued to recognize this superior claim of the youngest son provided he discharges his familial support obligations [S. 31]. Notably, it also recognized the youngest son’s superior claim over his deceased mother’s personal property [S. 32(2)].
However, it made five key variations. First, it specifically mentioned that the youngest son’s superior right extends to only “one extra share” [S. 31-32]. Second, it provided that the property of the deceased father is to be divided equally among the surviving wife, provided she remains chaste, and all the sons [S. 31]. Earlier, the surviving wife did not receive a share in her husband’s property, and the requirement of chastity was absent. Third, in certain circumstances, the youngest son is provided one extra share without any obligation of support [S. 31(5) & S. 32(2)]. Fourth, one who supports an owner till his death is entitled to a share superior to everyone, including the youngest son [S. 33]. Fifth, it uniformized the custom across classes. Thus, chiefs and peasant classes are now governed by the same practice.
Thus, under the Act, the custom of patrilineal ultimogeniture applies to both father’s ancestral property and mother’s personal property. So long as the youngest son is alive, not indang, and obedient to his familial duties, he will inherit precisely one extra share.
Analyzing the Validity of the Custom
Patrilineal ultimogeniture is a legally binding local custom. However, for it to be valid, it must satisfy both formative and operative pre-requisites.
Formatively, it must have antiquity, continuity in practice, consistency, and certainty. These requirements involve only questions of fact. The abovementioned historical record and the Act provide sufficient proof of its existence. They further demonstrate that this custom has been uninterruptedly and consistently followed for centuries with certainty as to the applicable territory and community. Thus, all formative pre-requisites have been satisfied.
Operatively, the custom must not be unreasonable, opposed to morality, or opposed to public policy. The satisfaction of these elements is more complex, as they involve mixed questions of both fact and law. Accordingly, I will analyze each in turn.
The relevant standard is that the custom must be so obviously and seriously repugnant to reason, that its enforcement would create more mischief than that which would result from overturning expectations of its presumed continuity for the community.
Patrilineal ultimogeniture in the Hnam Dan is not repugnant to reason because the youngest son has only one extra share, premised on the valid obligation of using that share to support his family. Even particularly choosing the youngest son, to the exclusion of older sons and daughters, is with good reason. It is unfeasible to obligate the daughter, as under the patriarchal and patrilineal family structure of the Mizo community, she joins her husband’s family after marriage. It is more feasible to choose the youngest son as he is the least likely to have established himself in the world, and is most likely live longer. Thus, non-enforcement of this custom would cause greater mischief to the legitimate expectations of the community.
In any case, the evidentiary rule is that the unreasonableness of the custom has to be proved by the complaining party, rather than its reasonableness being explained by the community. Therefore, even in the absence of the aforementioned reasons, there is a presumption of validity.
Opposed to Public Policy
A custom that has the tendency to injure public interest or welfare is considered opposed to public policy: while there is no straightjacket formula, the standard of invocation is where the harm to the public is substantially incontestable in minds of more than a few judges. These have largely been applied where the subject of the custom involves humans, rather than property. However, in India, a total restriction on the alienation of property has been recognized as opposed to public policy.
Given that the purpose of this Mizo custom is ensure to elderly support, and the extent of deprivation to other eligible class of heirs is only one extra share, this enormously high standard of harm to public interest is unsatisfied. Further, this custom or the Hnam Dan do not impose any conditions restricting alienation.
Opposed to Morality: Abandoning the Present Test
The primary approach of the Court has been to judge a custom through the morality of the tribe itself, i.e., social morality. However, the judge is bound to disregard social morality if it is abhorrent to the “right-thinking people”. Ultimately, the judge is expected to consult the needs and mores of the community in an impartial manner, rather than her personal inclinations.
However, requiring the judge to switch between two alternate moralities renders the entire test incoherent and contradictory. This approach requires the judge to make two choices: first, the saturation point at which social morality must be disregarded; and second, who are these right-thinking people, on the basis of whose opinion the switch must be made. There is no objective basis for making these choices, and thus the judge needs to necessarily consult his personal inclinations. The fact that different judges have made different choices even in the same case demonstrates their subjectivity.
In the absence of an objective saturation point, the judge is conferred with almost unbridled power to decide, and her only tool is her intuition. This opens the door for the judge to abuse power, and enforce her own morality. Further, the freedom to decide whose opinion constitutes as “right thinking”, generates an unresolvable tussle over the credibility of the admitted source, from a realist standpoint. This stems from the absence of any evidentiary basis through which an advocate can question the judge’s admitted source. Consequently, this test must be abandoned altogether.
Testing the Custom Against Constitutional Morality
The alternate approach lies in a tangential remark the Court had made while practicing the current test. It had recognized that enlightened opinions to adjudicate morality are best embodied in statutes. Arguing from statutes is relatively objective, and significantly cuts judicial discretion by establishing signposts within which the judge must act. The most effective method of enforcing this view is by using the doctrine of “constitutional morality”. At present, constitutional morality means two things: first, the spirit or essence of the Constitution; and second, it is typically differentiated from social or popular morality. By mitigating social morality, and requiring reference to only one form of morality – viz the Constitutional values contained in the Preamble, and Part III and IV – the problem of “subjective saturation point”, suffered by the earlier test, is overcome. Further, there is no “unresolvable tussle” as disputes are now not over the source per se, but the arguments contained therein.
Thus, the apparently relevant issue now becomes whether this custom violates the value of gender equality. In Madhu Kishwar v State of Bihar, the Supreme Court held that the Chota Nagpur Tenancy Act 1908, which provided for inheritance to only the male line, violated gender equality under Article 14 and 15 of the Constitution. However, it made two additional observations which are relevant here. First, each allegedly discriminatory inheritance law would have to be examined on a case-to-case basis. Second, if the discrimination is not solely based on sex, but rather an “intelligible differentia”, which has a rational nexus to the objective, then the law would be valid.
The youngest son’s superior claim must be analyzed separately vis-à-vis the father’s ancestral property, in Section 31, and mother’s personal property, in Section 32. Towards the former, the youngest son is provided one extra share with the objective of empowering and obligating him to support his family. Disentitling the youngest son from his extra share on his failure to discharge this obligation shows that there is rational nexus to the objective.
Towards the latter, there exists no such obligation. The superior claim is sourced in S. 31(2), S. 31(5), and S. 32(2) of the Act. However, the obligation of support has only been mentioned in S. 31(2), and is absent from S. 31(5) and S. 32(2). Its absence from S. 31(5) shows that the obligation does not generally flow through S. 31. More importantly, its absence from S. 32(2) shows that there is no concomitant obligation with the extra share. This leads to the presumption that the classification has been made solely based on sex.
Thus, this custom complies with constitutional morality vis-à-vis only the father’s ancestral property, and not the mother’s personal property. Accordingly, the custom must be read down from Section 32(2).
The custom of patrilineal ultimogeniture in the Hnam Dan embodies the Mizo community’s deep-rooted family values of care and compassion towards the elderly. The custom has seen several secondary changes by virtue of the 2014 Act, which reform it both progressively and regressively. The moderation of an extra share, uniformization of the custom across classes, and greater recognition towards a non-family member who takes care of the ancestor are all progressive steps. However, the insertion of a chastity requirement for the widow to inherit her deceased husband’s property is regressive as it curtails her autonomy in a discriminatory manner.
Since the present test of morality is incoherent and contradictory, it must be replaced by constitutional morality. Based on this revised criterion, the custom legally satisfies all requisite elements as regards the ancestral property. However, while the custom as regards the mother’s personal property satisfies all the formative elements and most operative elements, it is nonetheless unfounded on any intelligible differentia, and thus appears to be made solely on sex. Consequently, it violates constitutional morality to that extent, and must be read down.
The author is a third-year law student at the National Law School of India University, Bangalore.