Gender and Customary Law
Gender and Customary Law
Gender and Customary Law
Gender and Customary Law: A Case Study of Mizo Tribe in North East India
Author(s): Mercie Gangte
Source: Indian Anthropologist, Vol. 46, No. 1 (January - June 2016), pp. 17-30
Published by: Indian Anthropological Association
Stable URL: http://www.jstor.org/stable/43899790
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Gender and Customary Law: A Case Study of Mizo Tribe
in North East India
Mercie Gangte
Abstract
Introduction
Customary Laws are those age old code of conduct for living which may be
unwritten or un-codified but followed within a particular socio-cultural unit.
The customary laws are part of tribal jurisprudence; approved, acknowledged and
abided by members of the society that serves as an important factor in social
cohesion. Like most tribes which are present in the North-Eastern Region of India,
the Mizo community attaches immense importance to their customary laws.
Certain customary laws may have faded due to intrusion of Christianity, yet
many of the customary practices in the traditional Mizo society can be seen
even in the modern times as a reinforcement of tradition and continue to attach
great importance as the guiding principles of the socio-cultural and political
lives of the people.
MERCIE GANGTE, Research Scholar, Centre for the Study of Social Systems,
School of Social Systems, Jawaharlal Nehru University, New Delhi, India. Email:
[email protected]
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1 8 GENDER AND CUSTOMARY LAW
'Customary laws' on the other hand are obligatory and are backed by sanctions
which society may impose in the event of failure to obey. Durkheim (cited by
Morrison) discusses about Collective Conscience which refers to a body of
beliefs, practices and collective sentiments which are held by all members of th
society in common (Morrison 1995:154). Collective Conscience can be
regarded as part and parcel of the concept of Customary laws as it is the
collective conscience of the community as a whole which evolves with tim
determining systems of beliefs and ideas with the community as a whole
conform to them. Conscience is an important component of customary laws and
as customary laws are implemented by the community as a whole it is essentia
that there is a feeling of commonalty underlying such conscience and the
need for the people in a community to follow customary laws.
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Indian Anthropologist ( 2016)46:1, 17-30 19
Research Questions
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20 GENDER AND CUSTOMARY LAW
complication the
contract (Shakes
believed that if in
Lahiri 1982:58). Th
committing inces
rarity. The insti
prevented such an
interaction with e
under the watchful
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Indian Anthropologist (2016) 46:1, 17-30 21
As far as the bride price amongst the Mizo is concerned it is not the amount
rather it is the value attached to the relations and persons that matters. No
marriage could be solemnized without the payment of the bride price. It is
not mandatory to pay the bride price in full at the time of marriage. The
marriage payment is broadly classified into two parts:
Manpuiis the price paid to the father of the bride or brother of the bride and
in case of absence of father or brother, it can be claimed by the nearest male
relative of the bride. Usually the main marriage price is around Rs. 100/- but it
can be increased by another Rs.20/- if a bride is given a gift (Thuam) by her
natal family. Mantang, on the other hand is the price that is paid to the wider
family of the bride.
The bride price under the category of Mantang and the recipients of such price
are as follows:
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22 GENDER AND CUSTOMARY LAW
Besidesthe Manpu
optional and non-r
made to persons in
family circle. Thes
1 Thian Man or M
who plays the rol
Thian Man is betwe
2 Lawichal: This p
house of the bride
of Lawicha /is Rs. 21-
3 Nu-Man: This price is given to mother who was divorced before her
daughter's marriage.
4 Khualkai: Payment made to the family in whose house the bride stayed in case
the groom is from another village.
5 Chhuatkil Kaiman: Payment made to the householder in whose house a
bride performs her marriage in case marriage is not performed in her own
house.
6 Chharsutphawi: Payment made to elder sister as fine in case the younger
sister marries earlier than her.
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Indian Anthropologist (20 1 6) 46: 1 , 1 7-30 23
1 . Ma or Mak : This is the most common existing form of divorce and in such
kind of divorce occurs when a man divorces his wife against her will by simply
uttering the word "Ka ma che" (I divorce you).
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24 GENDER AND CUSTOMARY LAW
4. Peksachhang: T
without any form o
5. Atnavangainthe
wife or husband b
6. Nupui Tlansa
circumstance when
In such a form of
house and other pr
7. Kawngkasulamak
has fallen in love w
or the next day.
8. Zawngzaw : Wh
intercourse with his
9. Chhuping : It is
wife is unable to p
The customary laws are often favourable to men and they enjoy the status
which is provided to them by virtue of their gender; their superior status is
reinforced strongly by the customary laws, and if such status between male and
female are differentiated by the customary laws itself it becomes a difficult and
impossible task to sway away from the code of conduct followed from
generations to generations. Studies of tribes of North Eastern India found that
women of several tribes like Naga, Kuki and Lakher often restrain themselves
from taking steps like divorce as it necessitates them to return their bride price
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Indian Anthropologist (2016) 46: 1 , 17-30 25
Moreover divorce women are victim of economic and social insecurity. On one
hand they do not have economic security as they do not have custody of
children or property. On the other hand, they are victim of bad reputation. An
interview with Remi a housewife, show that besides financial insecurity after
her husband divorced her, as she was a housewife she had to choice to go back
to her natal home. Furthermore, her worse experience of divorce was the
labeling of her being a bad wife and failed mother. Even when women divorce
her husband due to domestic violence, society often blames the women,
therefore women avoid divorce.
Like any other family with a patriarchal set up, even in the Mizo family the
father is considered the head of the family who is the authority in the
household. The other members of the family in the household enjoy and share
the property but they do not have the right to claim any of the property. In
matters of inheritance and Succession mother's line is disregarded. In
accordance with the law and custom of the society, male ultimo-geniture is
followed wherein the youngest son in the family who is the heir to the father's
land and property. Under the Mizo customary laws there are different rules of
inheritance, namely:
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26 GENDER AND CUSTOMARY LAW
Property of a woman is the property she carries along with her in the household
of her husband at the time of marriage. The property of a woman is divided into
two different categories:
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Indian Anthropologist (20 1 6) 46: 1 , 1 7-30 27
As per the customary rules women's sole possession or property are the
Hmeicche Bungrua and Thuam and it is only these two kinds of property over
which she has the sole right. Karen Sacks claims that only goods and resources
with productive potential can be considered property' (1974:209). Agarwal
argues that a dowry in movables is not equivalent to an inheritance share in
land; and although a popular fiction is maintained that dowry constitute a
daughter's inheritance share, in fact the difference between a dowry in
movables and a share in landed property is implicitly well recognized by
communities (Agarwal 1998:251).
If one looks at the productive potential of Hmeicche Bungrua or Thuam, we
find that they have no productive value rather they are articles with social
values attached to married women. Therefore the so called properties of women
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28 GENDER AND CUSTOMARY LAW
In India and also in other countries land defines social status and political
power in the village, and it structures relationships both within and outside the
household. For the tribesmen the land is not just a source of life but it is also a
symbol of identity and unity as it holds together family, clan and tribe. In
accordance with the Mizo customary laws when men have no heir the person
next in line for inheritance is the nearest male clan member and not the women
in his family as land is symbolic to clan identity. Passing on the land to clan
member is justified by the community as it is believed that it will protect and
perpetuate the clan's identity. In the agrarian economies of South Asia, arable
land is the most valued form of property, for its economic as well as its political
and symbolic importance. It is productive, wealth-creating, and livelihood
sustaining asset. Traditionally it has been the basis of political power and social
status (Agarwal 1998:17).
Men obtain the rights of cultivation, by virtue of the membership they have in
the patrilineage. As wives women have the rights of use of land of husband's
land and daughters have the right to maintenance in their natal lineage. Women
do not have independent ownership of land both as wives or daughters.
Ideologies and associated practices debar women in tribal society to exercise
control over land and property. Studies have shown that very often women give
up their claims in parental ancestral land to brothers. In northern India sisters
give up their share of inheritance in favor of their brothers to maintain good
relation after their marriage. Access to natal home can be significant for women
as a fallback position. For such reasons women sacrifice their share to their
brothers.
There are cases where women inherit land and property; Mapuii a business
woman inherited land from her deceased aunt, she claimed that she had to
undergo prolong legal procedures to claim her land, after attaining her land she
stated that her relation with other relatives were not cordial as she was not the
rightful inheritor by custom and convention. Her case clearly shows that even
with the presence of state law women still have to negotiate between traditional
law and modern state law and usually guided by their emotions, ethics and non
familiarity of the state law women often opt for customary laws for issues
regarding marriage, divorce and inheritance which automatically gives land
rights to male alone. The lack of control of land impedes women's development
in both economic and political sphere. While discussing the significance of land
as property, Agarwal argues that, land provides a sense of identity and
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Indian Anthropologist (2016) 46:1, 17-30 29
Conclusion
A closes scrutiny of the different forms of divorce illustrates that the men hav
more privileges as divorce is easy for them. Since divorce is approved by the
law it situates women in a very fragile position. A divorced woman is entitled
only Hmeicche Bungrua or Thuam which are articles of social value and no
economic value. Marriage payment as discussed earlier amounts to only about
Rs. 300/- as these payments also have socio-cultural connotations and it is by
no means meant for the economic security of the bride. Hmeichhia Rokhawm o
Inheritance by women is nowhere mentioned in the customary laws.
What is clear here is that women belonging to different tribes of northeast Indi
do not have a legal right or a platform where they could vent their grievances.
Laws such as those enacted for the Hindu women are virtually absent among
the tribes and thus they have to comply with their customary laws. Recently th
Mizoram Marriage, Divorce and Inheritance of Property Bill, 2014 wa
introduced for the legislation on divorce and inheritance right for Mizo women
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30 GENDER AND CUSTOMARY LAW
(Northeast Toda
introduced on a h
efficacy of the ne
References
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