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Home SC Story Sikkim: Customary laws on right to divorce for STs needing a refix

SC Story

Sikkim: Customary laws on right to divorce for STs needing a refix

By SC Bureau -

30/07/2019

1918

No matter how hard it is to digest, there are things in our life which are inevitable. If we talk of one such
issue that is bitterly painful, it is the tragic occurrence of divorce that engulfs married couples.

In a country where marriage is considered sacred and indispensable for men and women, divorce is
considered a nightmare, the consequence of this idea will be that either both parties will be riddled with
stigma for a long time to come or they will find a new life to start with.

Generally, the law that governs Divorce for Hindu, Buddhist, Jains and Sikhs is the Hindu Marriage Act,
1955 and unlike these religions, other religious groups and communities too have their own set of rules
that govern their personal laws. When we talk about the applicability of law of marriages and divorce to
the Scheduled Tribes, many important things come up for consideration.

And now when we talk especially about the laws of marriages and divorces that govern the Scheduled
Tribes like Bhutias, Lepchas, etc., living in Sikkim, we find them to be the most helpless – deprived and
vulnerable like a warrior whose sword has rusted or a sprinter whose knees are fractured.

Position of Law

The Hindu Marriage Act which is a socially beneficial legislation was codified in the year 1955 to
maintain marital relationship among the Hindus, Buddhists, Jains and Sikhs. This act extends to the
whole of India except the State of Jammu and Kashmir and applies to all Hindu, Buddhist, Jains, Sikhs
and any other domiciled individuals living in territories of India except J&K and who is not Muslim,
Christian, Parsi or Jew by religion.
The aforementioned law allows divorce either through mutual consent or without the mutual consent of
the parties.

The Hindu Marriage Act, 1955 has no application to the Scheduled Tribes, which means that this act, in
any case, will not be applicable to the Scheduled Tribes like Bhutias, Lepchas etc., living in Sikkim. The
relevant section is Section 2 (2) of the Hindu Marriage Act, 1955 is reproduced below.

…Nothing contained in this Act shall apply to the members of any Scheduled Tribes within the meaning
of clause (25) of Article 366 of the Constitution under the Central Government, by notification in the
Official Gazette, otherwise directs.

To further substantiate this, there is a list of judgments which has held that a member of the Scheduled
Tribe’s Petition under Section 13 of the Hindu Marriage Act, (Divorce Petition) will not be maintainable
in view of the above provision under Section 2(2).

Issue under consideration.

The main issue that requires serious consideration is that if any individual belonging to the Scheduled
Tribe communities is aggrieved with regard to his/her marriage then under which provision of law
members of tribal communities can redress their grievances.

This issue requires wider acknowledgement as it involves the fate of many married couples belonging to
tribal communities who are at the brink of their marital breakdown and want to live their post-divorce
stage of life happily and peacefully.

The Solution

The Solution to this issue is through applicability of the customary law that governs the Tribal
Communities of Sikkim like Bhutias, Lepchas, etc. The legislative intent while enacting the Hindu
Marriage Act, the parliamentarians were very precise to define the word “custom and usage” u/s. 3(a) of
the Act.

“The expression ‘custom’ and ‘usage’ and rule which, having been continuously and uniformly observed
for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group
or family provided that the rule is certain and not unreasonable or opposed to public policy; and
provided further that in the case of a rule applicable only to a family it has not been discontinued by the
family.”

So, to further substantiate this, Supreme Court in its judgment delivered in 1963, Mirza Raja Pushpavati
Vijayaram Gajapathi Raj & Ors. V. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors.
MANU/SC/0247/1963 while upholding the decision of the Privy council in Ramalingam Ammal’s case has
accepted the principal to establish a custom upon which a party relies. The Court held (emphasis
supplied)

“it is of the essence of special usages modifying the ordinary law of succession that they should be
ancient and invariable, and it is further essential that they should be established to be so by clear and
unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their
existence, and that they possess the conditions of antiquity and certainty on which alone their legal title
to recognition depends.”
The importance of the custom has been further acknowledged by the legislature by incorporating
Section 29 of the Hindu Marriage Act, 1955.

Section 29 of Hindu Marriage Act, 1955 (simple word) if any rights are recognized by any custom or if
any rights are conferred by any special enactment to obtain the dissolution of a Hindu marriage then the
Hindu Marriage Act shall not affect any rights recognized by the custom and special enactment.

Customary Law on Right to Divorce with regard to Scheduled Tribes like Bhutias, Lepchas, etc.

Members belonging to the above tribes are deeply aggrieved by the non-application of law i.e Hindu
Marriage Act that governs divorce, so the only option left for the member of the Scheduled Tribe is to
follow the customary practice of divorce which is a recognized method of separation without involving
the court if such custom is recognized.

The Supreme Court judgement in Yamanaji H. Jadhav Vs. Nirmala MANU/SC/0073/2002 has held that
Divorce Deed executed before the Sub-Registrar office will be valid only if the parties contend the
existence/prevalence of the Customary divorce in the community to which the parties belong and
therefore, it has to be substantiated by the evidence on record. If the custom is against the law of the
land and is further left unproved before the civil court than this will be a practice opposed to public
policy.

So if I put it in simple words, it if any party who challenges a Divorce Deed before the civil court, that
party has to come up with material evidence to show the prevalence of any customary divorce in the
community to which the parties belong to.

Conclusion

As of now with very limited publication it is very difficult to ascertain as to which customary laws in
Sikkim will govern the Scheduled Tribes like Bhutia, Lepcha, etc. One unknown publication uploaded by a
website Soudhganga has mentioned a title Report of Customary Laws of Bhutia, but the author could
not verify its authenticity.

What we can all vouch for is that this parallel legal system based on customary law needs to be fixed at
the earliest to fade away the confusion that is prevailing in the minds of the Tribal Communities.

By Pramit Chettri. The author is an Advocate who hails from Malbassey, Budang village under Soreng
Sub-Division, West Sikkim and is currently practicing law before the Supreme Court of India and Delhi
High Court. He can be contacted via his email id [email protected].

The views expressed in this article are intended for the sole purpose of generating a public debate and
eliciting public response.

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This paper presents a critical evaluation on the issues which link the current educational system with
social justice. The paper will provide a critical evaluation based on the development of an appropriate
framework for finding how education is supposed to be constructed to reflect social justice around the
world today. By examining the various research, that centers social justice and education, one finds
evidence that educational social justice in the education context is based on the aspect of democracy;
this may be seen as an example of the extreme individualism. This hyper-individualism has dominated
the educational debate as it relates to social justice. In this situation, the whole society, and social
cohesion are marginalized. This marginalization led to the development of a school curriculum which is
based on providing education for specific individuals within the economic imperatives. The paper
concludes with the recommendation that in the creation of a socially just society, it is important for
hyper-individualism to not overlook the importance of the whole social group. This means that there is a
need for a shift of culture which would respect individual responsibilities and rights as part of the whole
social setting. Development of a curriculum which addresses the needs of all in the educational setting is
a product from addressing the middle of a society rather than all of a society.

Introduction
Social justice means ensuring equality in all aspects which affect people in the community,
society, nation and the around the globe. Social justice is a concept which fights s for the right of
every individual for the opportunities available in the society, no matter the class, age, gender,
race or ethnic origin. Social justice in modern day education is aligned to the dominate ideology
of democratic liberalism. This is about the examination of the hyper individualism emergence
which results into the dominance of the educational system and social justice. American students
comprise of those from rich and poor families, those from the urban and rural areas and those
who are straight and gay. Each day they are taught on the importance of equality and in every
pledging they make, they promise to be indivisible, ensuring there is justice and liberty to all.
Students are also taught of the value of democratic equality which suggests on the need of all
American to be treated and regarded as equal citizens with no biasness on the basis of one’s
background ,economic status, belief , background, religion, race, or sex. The students are also
taught on the fundamental on the main democratic value of justice which is a core belief that
America provides the same opportunities and benefits to all the citizens. Despite the teachings
given to students on social justice the education system of America is characterized by
inequalities which from year to year are being perpetuated.
The education system of American the 21st century is characterized by increasing wide gap
between those with and those without. This situation has been fostered by the trickle-down
economic policies and deregulation. These policies are traced back to the administration of
President Reagan and Clinton’s administration which enacted the anti-worker legislation.
President Bush administration further supported the major businesses and offering tax free
breaks for the rich as compared to the lower and middle class people these polices have hindered
the ability of America to move towards being an enlightened society because these policies have
introduced a few Feudalism where as other already developed countries have had positive
development in their education system.
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The implementation of policies which support social justice in the American education system
will mean providing equal opportunities to students in their rights to education. The reality about
the American system of education is that schools have distinct economic disparities. There are
those schools considered for the rich and those schools seen as poor schools. The socio-
economic condition of the families the students comes from determines the schools they attend
to. The choices of their extracurricular activities, access to money to pay for advanced
placement, yearbooks field trips and many other academic and non academic aspects. In most
cases, the students of low SES provide special education classes and remedial schools while their
counterparts attend schools which have college preparatory curriculum. Therefore the reality is
that students in America are not provided with the same educational opportunity as it is often
assumed.
History of public education in the United States
The public education of America is very distinct and unique compared to other countries mainly
because of the roles and responsibilities played by the individual school district and the states.
The formal public education of the United States was created I during the 19th century. The
public school system was initially suggested by Jefferson the American leader whose ideas were
well incorporated in the development of the country’s education system. Other continents and
regions which had been colonists by New England such as New Hampshire, Connecticut and
Massachusetts had already established the primary form of education of public education which
had already been implemented during the 1600s the main reason why the colonizers took to
educate the children was solely based on religious aspects of the Congregationalists and the
Puritans who were dominating on those regions. Alter when the regions began to be populated by
other people of different faiths. The initial concept of these public schools became weakened
through the opposition to learn both in the clergy imposition to the system and also in denial to
learn in English. This led to the formation of private schooling which were already a norm by the
mid of the 18th century.
The Declaration of Independence brought about unique standards and specifications of the public
education system. Jefferson suggestion was that all the public schools be under the control of the
government with no discrimination based on religious biasness and to be made available to all
people irrespective of one’s social status. Other contributions on the issue of public education by
then were made by George Washington, Robert Coram, Noah Webster and Benjamin Rush
However the true concept of education system by then was not well defined due to the impact of
economic transformation, political upheavals and wide scale immigration. Currently a lot of vast
changes have taken place in both the education sector which comprises of public schools,
religious, private and charitable institutions.
Public education system in America began in the 1840s and was attended with the wealthy
people within a given locality. Reformers came up to fight for the need of ensuring education
benefits are provided to even students from the poor families. One commonly known reformer is
Horace Mann who was for education reforms in Massachusetts and Henry Bernard based in
Connecticut. Common schooling was for the benefit of uniting the society, prevention of poverty
and crime by ensuring every citizen is well. These reforms calls led to the development of public
schools to students at the elementary level towards the fall of the19th century. The Catholic
Church was however not in support of these reforms but instead created its own schools to be
attended by students privately.
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The first public school which came up in the United States came in 1635 called the Boston Latin
School. And later Harvard University became the first university to enroll students from the
various public schools who had done well. Students in these early colleges and schools got
involved in the events of the time such as the World war 11, the Greater depressions and the
Cold war. The passing of Morill Act in 1890 meant greater support to the universities of various
states and land was also granted to construct these universities. Efforts were made to finance
these public universities and even those at the lower level to ensure that each student in America
gets high quality education.
However, the education system was not up to the level required by the members of public that
education should be made available to all the children irrespective of their gender, race or
economic standards. This was not the case in reality. Schools became highly discriminative
despite them being founded by the tax paid by all the members of the public. Discrimination of
these schools was on the basis of gender and race. In many schools, girls were not admitted and
if admitted, they were not provided with the same courses as those done by the boys. They were
only taught subjects like tailoring, cooking and secretarial courses. Discrimination in the United
States public education has also been enhanced by the unfair public policies passed especially in
school districts.
The cause of inequality in education system
According to various researches done to establish the cause of inequality in the education
system, it has become evident that the socioeconomic factors play a significant role in the
education of a child. Jerome Brunner, a cultural psychologist in his book the Culture of
education (1996) explains that the mental growth of a child is determined by the effect of
alienation, racism and poverty (p xii). He goes on to say that effective education is as a result b
of the constituencies and culture which is powerful in the maintenance of the social status quo
than in flexibility fostering (p, 15). The social status quo is promoted by political motivation
which aims at developing a body of the underclass people who support the industry.
During the whole of the 20th century, the economy of America was depended on the
manufacturing labor which was in need of workers who perform repetitive and simple jobs with
no any required formal education. Therefore the aim of these manufacturing companies with the
support of the government was not to cultivate a workforce which was educated. The 21st
century saw a shift of the manufacturing company reliance into an economy based on
information. This reliance required a workforce which is highly educated or literate; employees
who are critical thinkers in solving problems have technological know-how. These are the goals
which found not been achieved by every student because in the first place they are not been
given the opportunity to attend to schools due to the inequality in funding, lack of school
environment or the preparedness of teachers. That student who ahead attended the fully funded
schools by the government had students who were attended to individually compare to the least
successful schools which is a form of both geographical and economic segregation. In 2001
president Bush passed the policy of the No child Left behind Act as a law with the goal of
meeting the high standards of education and as a solution to enabling schools around the United
States to work and meet the standards provide by the Act. The Act has brought about heated
debate on why it is not addressing the issue of racism and poverty which are the central problems
that affect the education system in the United States. On the Contrary to the intentions of the Act
as a way of maintaining high level of education in the United States the Act has instead fostered
the racial segregation in the education system especially through its award system. It is only the
schools which perform better that they are provided with funds but when critically examine these
high performing schools are the schools attended by the whites students because they have been
well equipped with the educational facilities and resources necessary for students success. Those
schools which are attended by the Black students are mostly less equipped resulting to high rate
of students with the least academic scores.
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Public policies
Discrimination based on race
In 1619, many Blacks arrived in the United States as slaves and by mid 19th century there were
as many as 5.5 million Black people in the country. The early form of education the blacks were
provided with was religious education and to make them be Christians. In many regions with
slaves many missionary schools were created but in some parts mainly at the southern states
were against the provision of any form of education to the black people m because they were not
ready to do way with slavery use. All in all, the education provided to the blacks was of low
standards until 1863 when the Emancipation Proclamation was passed by Lincoln. The backs
literacy rate was pushed up to 70% by 1910 compared to 5% in the 1860s.
Reaching 1950s, segregation was still a common phenomenon in America. For example in the
southern states, there was a clear distinction of the black and white schools according to the
Supreme Court rulings on the Plessey V. Ferguson case. Such laws were not in the North of
America but still racial segregation in schools was still the common aspect and due to this
unbalanced form education, the blacks were provided with inferior forms of education. The
schools attended by the whites were also fully funded and had well equipped facilities and
teachers were also well remunerated compared to the black schools.
The passing of the Brown v. Board of Education of Topeka in 1954 by the Supreme Court was
meant to ban any form of racial segregation in the country’s schools. This law marked that racial
segregation was unconstitutional and it went ahead in ensuring that schools to be diverse. This
was especially in the South where federal courts had made great efforts of eliminating
segregation in the schools which in fact had been legalized. Despite the efforts by the courts it
was still not possible to totally eliminate the practice of discrimination in schools. The urban
schools became a place where the Hispanic Americans who were on the rises and the poor blacks
to attend the middle class blacks and majority of the white student were move to private schools.
Poverty became a common aspect to many Native Americans who had already lost their lands to
the whites making them not to even attend school all together.
Discrimination based on gender
Social inequality in the school system also involves discrimination along gender lines. What the
reality was during the time is that girls were not encouraged to study but this was fought by the
work of Mary Lyon, Jane Addams, Emma Willard , Mary McLeod . They came up with colleges
of higher learning for women which enabled young girls to learn the courses also learned by
boys which had been deemed as courses only for the boys. The first college for girls was the
Oberlin College which was founded in 1833. Others which followed were Vassar College in
1861 and Bryn Mawr College.
By 1960s many schools for girls and women had come up because of the rise of gender
movements which was against sexual discrimination. This lead to the passing of the federal
Education Amendment prohibiting against the discrimination based on sexual orientation in
1972. The girl’s schools and school for women began to be funded by the federal government.
Despite the equality of education to both boys and girls, women and men, discrimination on the
basis of gender is further seen when in search of employment after graduation. Many employees
would prefer to employ a man engineer than a lady engineer which also applies to the other
professions which were only meant for men in the past.
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The current nature of the education system of America
Education today is considered as a vital and lever in uplifting the modern society. But this
perception according To Sacks is a myth he presents various insightful aspects which portrays
the true nature of the education system in America in the current times. His books present factual
statistics and information to show the segregation in schools especially in the higher education
level of studies.
For example in 1988 students from the lowest economic background results showed that for him
to attain a university degree, he had to 6.9 % chances of gaining this chances. By currently this
does not apply. Low economic background means no bachelors degree or even a masters. The
only probability is that they can afford to join colleges by 50%. Also as student from high social
economic background has 51 % chances of earning a degree and for a masters degree with
probability of 8%. 9% and only 4. 4 percent to join a college (U.S Department of education
2002).
In the early 1990s students selected to join the national universities were 3% who are from the
lowest economic backgrounds while at the same time those from the highest economic families
had 75% chances of joining the compass. These statistics indicate the widening gap of the
education level among the rich and poor students. As years goes by those from low economic
backgrounds have ended upon not having education and if so they attended poor schools which
offer cheap schooling and low quality of education. Racial disparities are evident in the
education system. Minorities like the Latinos and African Americans among others are suffering
most because of this. These racial inequalities are an associate also of the class inequalities. The
educationist also characterized by unequaled findings depending on the prosperity level of the
school the quality of education and the social class of most parents in that School.
Recommendation
Addressing the issue of social justice in the education system portrays the negative consequences
of injustices in the education sector. Failure of equipping all the students in a given country leads
to a group of idol people who have the time to involve in various social crimes in the society as
well as Bad habits like drug trafficking and alcohol abuse. For the general good of all the
members of the public it is important for the government to look into ways which even students
from extremely low economic background can manage to learn. Education to all also means
empowering the nation economically because all people will be having the skills and knowledge
of investing and earning a desirable living condition. Brunner points that, “”Education is risky,
for it fuels the sense of possibility. But a failure to equip minds with the skills for understanding
and feeling and acting in the cultural world … risks creating alienation, defiance, and practical
incompetence” (pp. 42-43). Dewey also believes that the society can only be empowered through
education because it brings forth a change in knowledge, behavior and intelligence (Fishman,
1998). This therefore is the crucial time when the nation has to critically think on ways of
improving the society by ensuring there is justices and equality in the education system.