Hatti tribe

The Trans-Giri region of Himachal Pradesh recently witnessed a centuries-old customary practice where a woman married two brothers, a polyandrous tradition locally known as ‘Jodidaran’. This practice is recognized in Himachal Pradesh’s revenue laws under the term “Jodidara.” The Hatti tribe, which was granted Scheduled Tribe (ST) status by the Centre in 2022, has seen five such marriages in the past six years.

The ‘Jodidaran’ Tradition and its Rationale:

• Location: Predominantly practiced by the Hatti community residing along the Himachal Pradesh–Uttarakhand border.
• Reasons for Practice:
  • Land Preservation: Its roots lie in the desire to preserve undivided family land, particularly agricultural land.
  • Familial Bonds: Supporters argue it helps reinforce familial bonds between brothers.
  • Women’s Security: It is also believed to provide more security to women.

Legal and Constitutional Context:

• Prohibition in Modern Laws: Polyandry and polygamy are outlawed by:
  • The Special Marriages Act.
  • The Hindu Marriage Act, 1955.
  • They are also criminalized under the Bharatiya Nyaya Sanhita.
• Customary Laws and STs: While religious personal laws govern marriage, the Constitution of India (under Article 342) recognizes the relevance of prevailing customary laws among STs, granting them a distinct legal status.
• Hindu Marriage Act (HMA), 1955: Section 2(2) of the HMA, 1955, which governs Hindus, Buddhists, Jains, and Sikhs, includes a carve-out. It states that its provisions do not apply to STs “unless the Central Government, by notification in the Official Gazette, otherwise directs.”
• Hatti Customs: In the absence of such a notification, the Hatti community continues to be governed by their customary laws, which are undocumented and uncodified.

Customary Laws vs. Fundamental Rights:

• Judicial Scrutiny: Increasingly, Indian courts have begun to interpret customary laws prevalent among STs in alignment with fundamental rights such as equality, dignity, life, and liberty as enshrined under the Constitution.
• Unconstitutionality: Any customary law found to be in conflict with fundamental rights is liable to be struck down as unconstitutional. A notable example is the Supreme Court’s declaration of the practice of triple talaq as unconstitutional under the Muslim Personal Law (Shariat) Application Act, 1937, deeming it arbitrary, unreasonable, and violative of Articles 14 and 21 of the Constitution (right to equality, dignity, and life).

(Source: IE)