Australian Journal of Asian Law, 2024, Vol 25 No 1, Article 2: 23-37
By Sandeep Kindo*
This article offers an analysis of the dissenting judgment’s understanding of indigenous inheritance custom in the gender inequity dispute in the Indian Supreme Court’s 1996 Kishwar v Bihar decision. It examines how the contemporary Indian judicial system uses modern law in interpreting and recognising tribal customs, specifically inheritance custom. The article finds that the law’s description of custom in ‘ancientness’ and ‘invariability’ terms poses difficulties for the distinct tribal inheritance custom, which this article views as ‘continuing custom’. It also shows how judicial interpretation privileges workable custom evidence by ignoring the impasse between custom’s conceptual understanding and evidentiary requirements in the general law. The article offers a new theoretical perspective on the central problem of indigenous inheritance custom recognition by seeking to reconcile the impasse with ‘continuing custom’ that views temporality as essential.