This article talks about the peculiar culture of Mizoram and its unique matrilineal system. Mizoram has formalized its customary laws. The article deals with their marriage, divorce, and property law in detail and how it affects the changing socio-economic and political fabrics as tribal communities become more heterogonous and complex.
Introduction
Mizos were formerly known as the Lusei tribe or the Lushais. It is not known as to where they originally came from except that they must have come from Burma, as they are undoubtedly Mongolians. The origin of the Mizos cannot be traced back too far as there weren’t any written records. Their history has been passed down based on oral traditions. The property in Mizoram is predominantly viewed from a patriarchal angle with implications in the socio and cultural system of the society. In 1928, the British Pioneer, N.E.Parry, documented Mizoram’s customary law.
However, after independence, Mizoram was granted a special provision by the ‘Government of India under the Sixth Schedule’ for establishing District and Regional Councils for the conduct of proper administration in the State. This provision aimed to preserve traditional autonomy and local self-governance of the people wherein the village level bodies run following the customary law.
In 1986, Mizoram’s customary law was recognized by the 53rd amendment to the Constitution of India 1986 through Article 371 G. On 30th November 1956, Mizo customary law came into force and on 12th November 2014, the Mizoram State Legislative Assembly has passed the ‘Mizo Marriage, Divorce and Inheritance of Property Act. The customary laws dealing with marriage, divorce inheritance is intrinsically patriarchal and
Mizo Marriage
Marriage is defined in Section 3(r) under the Mizo Marriage, Divorce, and Inheritance of Property Act, 2014. Section 3(r) defines marriage as a ‘union between a man and a woman who are both major upon the happening of a sequence of events. Whether the marriage is solemnized according to the customary laws or according to the provision of the act, the marriage becomes binding and complete. The marriage price or bride price continues to remain the same as the customary law.
According to the customary law, the bride price or manpui (main marriage price) is fixed at not less than Rs. 420/-. This includes thutphah or Rs.20/- as security money which is afterward returned to the bridegroom’s family. It is considered a symbol to let the bridegroom’s family know that they are not sending their daughter to burden their family, but that the amount is to be utilized for her to invest and contribute to her marital home. A notice of the intended marriage is to be made known to the Licensed Officer. The Licensed Officer is supposed to fix the date and time of marriage in consultation with the parties and then the marriage is solemnized by the Licensed Officer in the presence of at least two witnesses.
The certificate issued by the Licensed Officer is the proof of marriage and such marriages shall be registered under the Mizoram Compulsory Registration of Marriages Act, 2007.
Section 8 and Section 10 of the Mizo Marriage, Divorce, and Inheritance of Property Act, 2014 deals with voidable and void marriages. Section 8 defines voidable marriages as a man and a woman living together on inru (it means a man taking a woman to live with him as his wife) or tlandun (it means elopement of a man and a woman) or fan or luhkhung (it means a woman leaving her house and living with a man in the man’s house as husband and wife) is not a valid marriage. On the other hand, Section 10 defines void marriages as living together as husband and wife
- two persons of the same sex
- a person with another person having a spouse living
- either or both are under age
Such marriages are void ab initio under the Mizo Marriage, Divorce, and Inheritance of Property Act, 2014.
Divorce
Divorce was not seen as a stigma in the Mizo community. Divorce in the Mizo community can be seen as a conflict between religion and the law. According to the religion, divorce is seen as an abhorrent act, it does not permit it but customary law has recognized divorce of many kinds. In the Mizo community, there are many forms of divorce, settling divorce based on money is one of them. In this form of divorce, the woman goes back to her parental home and the man renounces all claims to any portion of her price which he may have paid unless the woman agrees to its being partially returned. When the marriage ends, the bride price is paid in full.
The Mizo society puts female chastity on a high pedestal and a woman is required to uphold a high standard of principles. A distinction is made between a woman who commits adultery during her marriage and after the death of her husband. If a woman commits adultery while her husband is alive, she is punished severely. However, the same law is not followed when it comes to men, they are not judged on the same basis. A woman has no legal recourse when the man commits adultery during the subsistence of his marriage. Divorce for a Mizo woman generally entails losing custody of her child/or children with no economic security for her future.
Grounds for Divorce
Divorce is defined in Section 3(g) under the Mizo Marriage, Divorce, and Inheritance of Property Act, 2014. Section 3(g) defines divorce as a dissolution of marriage or separation amongst the Mizo through the Mizo customs. Section 13 of the act deals with the grounds for Divorce in the Mizo community. The grounds for divorce are as follows:
- the respondent has committed adultery
- due to irreconcilable incompatibility
- the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent
- the respondent has been incurable of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition
- the respondent has, for not less than three years immediately preceding the representation of the petition, been suffering from a virulent and incurable form of leprosy or any disease in a communicable form that endangers the life of the spouse
- the respondent has not been heard of as being alive for seven years or more by those persons who would have naturally have heard of the respondent if the respondent had been alive
- the wife refuses to go on ‘Lawi’ (Lawi is an act of the bride entering the home of the bridegroom after leaving her own home upon marriage.)
- the respondent has willfully refused to consummate the marriage and the marriage has thereof not been consummated
- the respondent has deserted the petitioner for at least two years immediately preceding the presentation of the petition
- by mutual consent
- The court can grant the decree of divorce on the above following grounds.
Mizoram’s New Divorce Law: A Hope For Women
The newly enacted law called the Mizo Marriage, Divorce, and Inheritance of Property Act, 2014 allows divorced Mizo women to inherit the property of their former husbands. This would also ensure protection to the women from being divorced at the drop of a hat by their husbands. The Mizo Marriage, Divorce, and Inheritance of Property Act, 2014 recognize three kinds of property:
- Acquired property
- Ancestral property
- Personal property
According to the Mizo Marriage, Divorce and Inheritance of Property Act, 2014, when a woman leaves her husband on the ground of sumchhuah (This divorce happens at the behest of the woman who no longer wants to live with her husband. It is the woman who leaves the husband’s house voluntarily. Sumchhuah means releasing the money. Money here signifies the bride price), she only has a right to take her personal property and has no right over the property acquired by the family.
However, if due to domestic violence or cruelty of her husband, or her husband is wantonly sexually unfaithful or her husband has become insane, or if she is deprived of her conjugal right except on grounds of health and she is compelled to leave her husband because of such reasons, then she cannot be deprived of her right over the acquired property.
When the husband divorces the wife on grounds of adultery or deprivation of his conjugal right except on grounds of health, the wife is entitled to a share of the acquired property not exceeding 25% along with her personal property. When the husband voluntarily leaves the wife on the ground of kawngka sula mak (it means old wife goes out of the door as the new wife enters in), she is to be given a share of up to 50% of the acquired property. However, if divorce happens on mutual consent both will share the acquired property as mutually agreed between them.
Inheritance of Property
Inheritance of property means the legal transfer of property from an ancestor to his or her descendants on the death of the ancestor through succession or will. According to the Mizo customary law, the youngest son in the family is appointed to inherit the father’s land and property. According to customary law, a daughter does not have any share in her father’s property except when there are no sons. In such a case, the daughter will inherit property and if there is more than one daughter then the father will divide it equally between them. There are various forms of inheritance under the customary laws such as:
- Pa Rokhawm: When the son directly inherits from his father’s property
- PamiRokhawm: Property inherited from a father’s brother or paternal uncle.
- Unau Rokhawm or Inheritance from Brother: If a man having no child or children dies, his entire property is succeeded to by his brother.
- Pu Rokhawm: Property inherited from paternal grandfather.
- Fa Rokhawm: Property inherited by father from a deceased son.
- Ni Rokhawm: Property inherited from a paternal aunt.
- Chawmhlum Rokhawm: Property inherited by someone other than a relative or clansman, who lived in the house with the deceased and supported him during his lifetime.
- MichuangRokhawm: If a vagabond dies in the house of a man as his guest, the man in whose house he dies has a right to inherit all his property.
Chapter VIII of the Mizo Marriage, Divorce, and Inheritance of Property Act, 2014, deals with the provisions for the inheritance of a Mizo person who has died intestate. Section 13 (1) states that a Mizo widow automatically becomes the head of the family on the demise of her husband to look after the welfare of minor children.
However, where the children are major, she has to obtain no objection from the children on the condition that she remained chaste. This means the widowed wife can represent the family’s legal, social, and religious matters like the manager of the family thereby earning the title of head of the family.
The capacity of Mizo Women To Inherit Property
According to the Marriage, Divorce and Inheritance of Property Act, 2014, Mizo women can inherit property in the capacity of
- Widow
- Unmarried Daughter
- Married daughter
- Youngest surviving sister
- Illegitimate Daughter
Widow: Section 31(6) of the Marriage, Divorce, and Inheritance of Property Act, 2014, state when there are no children, legitimate or illegitimate of her husband at the time of his demise, the widow of the husband is entitled to inherit the entire property in her capacity as the head of the family.
Unmarried Daughter: Section 31(4) of the 2014 Act, states an unmarried daughter who has been looking after her parents and siblings is entitled to get a share equivalent to the mother/ sons. In a situation where the head of the family dies without any surviving sons, then the unmarried daughter will inherit equally with the surviving wife.
Married daughter: Section 31(7) of the 2014 Act, states a married daughter is entitled to the right to inheritance in her deceased father’s property in the event where there is no surviving son, wife or unmarried daughter.
Youngest Surviving Sister: Section 31(10) of the 2014 Act, states an event where an unmarried daughter had died intestate while she was still a joint family member in her father household, and she being issueless, neither father nor mother or a surviving brother to inherit, her personal property will be inherited by the surviving youngest sister.
Illegitimate Daughter: Section 31 (9) of the 2014 Act, states the right of the youngest illegitimate daughter to inherit is another exceptional right created by operation of law in the event of absence on any apparent heir- no surviving son, unmarried daughters, wife, married daughters or youngest illegitimate son where the head of the family had died intestate
Conclusion
The Marriage, Divorce, and Inheritance of Property Act, 2014 is important legislation and has come a long way. The new provisions incorporated in the Act have tried to empower and strengthen the position of women in marriage, divorce proceedings, and rights to inheritance of ancestral property. With the advent of these new provisions, women also have a right to their father’s property as well as the ancestral property of the family. The law is still consciously repressive so far as inheritance rights of the father’s property are concerned and the daughter/female is still the second in line to the son.
The Act has now made it possible for a divorced wife to have a share in the acquired property of the husband and wife. Equal participation in social, religious, educational, and economic activities does not necessarily mean equal socio-economic rights. The tradition of bride price should end because the status of women will not change as long as they have a price tag on them.
FREQUENTLY ASKED QUESTIONS (FAQs)
Are women entitled to their husband’s property after divorce?
The new legislation provided that divorce could only be granted by the court and women could now have shared in the family property.
What is the status of a widow in the inheritance of the property?
Section 31(6) of the Marriage, Divorce, and Inheritance of Property Act, 2014, state when there are no children, legitimate or illegitimate of her husband at the time of his demise, the widow of the husband is entitled to inherit the entire property in her capacity as the head of the family.
What is the meaning of bride price in the Mizo community?
Bride price is considered as security money which is afterward returned to the bridegroom’s family. It is considered a symbol to let the bridegroom’s family know that they are not sending their daughter to burden their family, but that the amount is to be utilized for her to invest and contribute to her marital home.
Is the wife entitled to the property, if the divorce is taken by mutual consent?
If divorce happens on mutual consent both will share the acquired property as mutually agreed between them. The acquired property will be equally divided between the man and woman.
On what grounds, marriage is considered void ab initio under Mizo marriage law?
Section 10 defines void marriages as the living together as husband and wife of two persons of the same sex or, a person with another person having a spouse living, or either or both are underage.
What happens if the husband divorces his wife on the ground of adultery?
The new legislation provided that if a man divorces his wife on grounds of adultery or deprivation of his conjugal rights, she would have a share over the acquired property not exceeding 25 percent along with her personal property brought in at the wedding.