Supreme Court: Party Claiming Tribal Custom Must Prove Its Existence and Applicability, Rejects Unproven ‘Ghar Damad’ Inheritance Claim
In a significant ruling on the proof of customary law, the Supreme Court has reiterated that any party relying on a tribal custom to claim legal rights must not only establish the existence of the custom but also prove that it is applicable to the parties concerned. The Court emphasized that customs, being exceptions to the general law, cannot be presumed and must be established through clear, cogent and reliable evidence before they can be recognized by courts.
The judgment arose from a property dispute within the Oraon tribal community, where one side claimed inheritance rights on the basis of the customary practice of recognizing a ‘Ghar Damad’ (resident son-in-law). The respondents argued that a niece’s husband had been inducted as a Ghar Damad by his uncle-in-law and, therefore, acquired inheritance rights over the latter’s property under tribal custom. The Supreme Court examined whether such a practice formed part of the recognized customary law governing the Oraon community.
A Bench comprising Justice Sanjay Karol and Justice N. Kotiswar Singh held that the burden of proving a custom always rests upon the party asserting it. The Court observed that while certain customary practices of the Oraon tribe had been recognized through earlier judicial decisions, there was no evidence to establish that an uncle-in-law could induct his niece’s husband as a Ghar Damad with consequential inheritance rights. The Court stressed that merely asserting the existence of such a practice is insufficient unless supported by convincing evidence demonstrating long-standing, certain and consistent usage.
The Supreme Court explained that a legally enforceable tribal custom must satisfy well-established legal requirements. It should be ancient, certain, reasonable, consistently followed, and not opposed to morality or public policy. In addition, the person invoking the custom must prove that the community or family concerned is actually governed by that custom. The Court noted that testimony from knowledgeable members of the tribe, historical records, previous judicial recognition, or other credible evidence may be relied upon to establish such customs. Once a custom has been judicially recognized, however, it ordinarily need not be proved afresh in every subsequent case.
Applying these principles, the Court found that although evidence existed regarding the customary status of a Ghar Damad in relation to a father-in-law, no material established that the same custom extended to an uncle-in-law. Since the respondents failed to discharge the burden of proof, the claimed custom could not be accepted. Consequently, the Court set aside the judgments of the courts below and held that the property would devolve upon the nearest male agnate under the applicable customary law.
The ruling reinforces a long-settled principle of Indian customary law: customs cannot override the general law merely on assertion. Courts will recognize a tribal or family custom only when its existence, continuity, certainty and applicability are established through convincing evidence. The judgment is expected to serve as an important precedent in future disputes involving tribal inheritance, succession, adoption and other claims founded on customary practices, while ensuring that genuine customs are distinguished from isolated or unverified practices.
