NLIU LAW REVIEW

The Disjunction Between Custom and Formal Law: Erosion of Matrilineal Succession in India

Devangi Dube and Avi Kapoor

Being distanced from the urban world through a practice of self-sustenance, tribal communities often developed certain traditional and customary practices that remain unique to their cultural identities. Although not recognized or codified by formal law, these customs continue to possess the sanction of their respective tribal communities and are practiced by their members as well. One such customary practice is that of matrilineal succession. Unlike the dominant patriarchal form of succession, the ancestral resources pass along to the female descendants under the custom of matrilineal succession. Additionally, the passage of identity works in a manner by which the mother’s identity is assumed by the clan/tribe itself. This paper focuses on the matrilineal societies of Meghalaya, namely the Khasis and the neighbouring Garos. Often mischaracterized as “matriarchal,” tribal women in these societies gain access to only a certain degree of power through matriliny. This paper seeks to argue that this special albeit restricted position of women in these tribal societies is further weakened by the non-recognition of matrilineal customs due to the adoption of colonial interpretation of customary laws by the Indian courts, mandating them to be ‘ancient, certain, and reasonable.’ Such an interpretation makes recognition of customs rigid, cumbersome, and improbable. This weakening is also exacerbated by the interaction between formal law structures, like land reform measures, codified personal laws, and informal customary practices. This interaction leaves the tribal customs vulnerable to the imposition of normative gender constructs practiced outside these communities.