Naomy Sale
Research Assistant Institute of Naga Studies, Dimapur
In Nagaland, customs and traditions play a primary role in defining ones identity; it regulates the social life as they are self-accepted rules. They bind people together, assimilate their actions to the accepted standards and control their purely egoistic impulses. People follow customs and traditions not just because they are traditionally enforced but since they are mixed with sentiments, feelings and personal obligations.
The Constitution of India 1949 provides a special provision for the State of Nagaland under Article 371(A) where no central act made by Indian Parliament is applicable in matters related to our religious and cultural traditions, our conventional laws and modes, criminal and civil laws related decisions, control of land transferral and resources.
Naga customary laws are unwritten customs, accepted as oral usages, practices and traditions for generations which regulate the day to day life. Due to its unwritten feature misinterpretation from the original intent and the content is possible. The interpreters and members of the customary court are only men and interpretation may be affected by individual views and opinions.
John Robert Lewis an American politician and a prominent civil rights leader rightly said “Customs, traditions, laws should be flexible, within good reason, if that is what it takes to make our democracy work”.
In our patriarchal Naga society women have a low social and economic status despite of modernization. The concept of marriage, divorce and inheritance of property among the Nagas and particularly in Angami tribe is that when a woman gets married she leaves her natal home and becomes a part of her husband’s family. Despite of women’s qualification and well salaried job her decision still remains in subordinate place. Even if Indian Constitution provides women the freedom to participate in political context hardly or rarely a woman is appointed as a leader or a decision maker. The influence of customary law is still very strong in this regard and the status of women has not been enhanced.
In case of divorce due to the husband’s infidelity, equal distribution of property between the husband and wife. In case the wife wants to claim maintenance for her children and her husband abandons her and their children. In the absence of written code of customary laws what will be the result if the father refuses to give maintenance? People will lose faith in the traditional courts and lean more towards the formal courts. The court generally does not interfere in customary domains of tribal community in India. Hence, woman are unable to use the penal provision effectively wherein under section 125 of The Code of Criminal Procedure,1973 provides an effective remedy for neglected persons to seek maintenance.
As per the Naga customary laws, after the divorce, the father takes the responsibility for the children; and if the mother insisted on keeping the children, then the sons would go to the father and the daughters to their mother. When it comes to guardianship of the children the best interest of the children should be taken into account irrespective of the father or the mother.
The Angami Customary law along with other Naga tribes bars women from inheriting ancestral land and property. In the absence of the male child, the ancestral property is handed over to the immediate male relatives. It clearly indicates women have no right of ownership on the ancestral property but only the right to use.
Among the states which enjoy special provision one is the state of Mizoram under Article 371 (G) which read as follows: 371G. Special provision with respect to the State of Mizoram Notwithstanding anything in this Constitution, (a) No Act of President in respect of (i) Religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (iii) Administration of civil and criminal justice involving decisions according to Mizo customary law, (iv) Ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of the State of Mizoram by a resolution so decides: Provided that nothing in this clause shall apply to any Central Act in force in the union territory of Mizoram immediately before the commencement of the Constitution (Fifty third Amendment) Act, 1986 ; (b) The Legislative Assembly of the State of Mizoram shall consist of not less than forty members. One thing common about Article 371 (A) and Article 371 (G) is that it protects the custom and traditions. The intention to point out Article 371 (G) in particular out of all the states is because Mizoram is the only state out of the 11(eleven) states accorded with special provision under article 371 by the Constitution till date which has enacted law with respect to Marriage, Divorce and Inheritance of Property which is called “The Mizo Marriage, Divorce and Inheritance of Property Act, 2014 “which has received the assent of the Governor of Mizoram on the 28th November, 2014. Women right over the mutually owned property after divorce, woman right to file a lawsuit in the court for divorce on justified ground, divorce would be valid only if it’s granted by Court, right to maintenance, daughters to have shares on inherited property are few of the changes brought in by the Act. It was a remarkable victory for uplifting the status of women and promotes gender equality. The strict patriarchal Mizo society which is ruled by men is evolved enough to give space for change which is shown in the fact that the decision for the passing of this Act was taken by a male dominated state assembly.
Nothing worth having come easy is truly said for the state of Mizoram as the said Act came into existence after a prolonged struggle for 40 years led by the Mizo Hmeichhe Insuihkhwm Pawl (MHIP), a women organization under its former President Pi Sangkhumi. Initially it was the introduction of The Mizo Divorce Ordinance, 2008 which gave a liberal approach to traditionally stringent Mizo Customary law which aims to bring about a fundamental change in the tribal society.
Unlike the Mizo community, in Nagaland there is diversity in tribes and each tribe has their own traditions and customs. For the women’s rights and gender justice and equality, a uniform codification of customary laws in civil matters by the members of all the communities in a consensual and coordinated way is the need of the hour. So the question of having one common Naga Customary Law or to have uniformity in law would be a very challenging task but doable. In fact having one customary law amongst the Naga community could bring the tribes together. The outcome of which may result in the social and economic welfare of the Naga.
Written and recognize legal provision of Naga Customary practice by statutory measure could be a stepping stone to gender equality and fairness in decision making.
