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 Indian formal law of marriage in the case of divorce between one male tribal Sujit Baghel and his wife Meenakshi Gawli. The Hindu Marriage Act of 1955 clearly states that the tribals, Muslims and Christians will not be covered under this legislation as they have their own personal laws. However, in the present case the dispute between the two persons has reached the High Court of Indore due to a disturbing set of circumstances. The marriage dispute was first considered in the tribal community panchayat in Kukshi in Dhar district from where Meenakshi hails. But the Baghels, who are a powerful political family in the state, belonging to the ruling Bharatiya Janata Party, 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 and refuse divorce. 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 lower court citing the provisions of the Hindu Marriage Act stated that it was unable to hear the case and dismissed it. Meenakshi then appealed against this decision and the case is now being heard in the High Court of Indore. The High Court appointed a retired judge to try and mediate between the two parties but that proved unsuccessful as the Baghels are still 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 by the Baghels and keep her suspended in limbo.
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 to customary tribal laws. However, instead of doing this the High Court is now going to decide on whether divorce can be granted under the Hindu Marriage Act and if not then suggest some remedy. There is a suggestion in the article that the Central Government should amend the Act to include tribals also in its purview since many tribals these days have adopted Hinduism and have distanced themselves from there own culture and laws. This is a very retrogressive suggestion because this would mean that the vast majority of tribals who still abide by their customary laws which are easy to administer in a decentralised manner would be unnecessarily dragged into the expensive and dilatory Indian formal egal system for resolving their marriage disputes also. What is most disturbing about this story is that the traditional tribal customary law regarding marriage and divorce is being sought to be formally overruled by patriarchal tendencies of the educated male Bhils.
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