Custom, Law and Gender Conflicts: Resolving the Jat Way

Custom, Law and Gender Conflicts: Resolving the Jat Way

Dr. S.S. Rana

The concept of moral law was known to the Indo Aryans at a fairly early period. The vedic people called it rita and the Avestans knew it as Asa. According to the Rigveda the universe was an ordered whole. The ways of life of good men who follow the path of rita was called vrata (Rigveda IX.121.1; X.37.5). The concept of cosmic law continued to dominate Indian thought but the term rita was rarely used to express it leaving the term to be expressed by terms like karma or dharma.
The word dharma has been found used in the sense of law. Veda is said to be the source of all dharma (vedo dharmamulam (Gautama Dharmasutra-1.1.2) and Vedo=akhilo dharmamulam smritishile cha tadvidam. Manu-2.6.) The Rigveda uses the terms prathamo dhramah(3.17.1; 10.56.3) and Sanatana- dharmani (3.3.1.) in the sense of the first laws and the ancient laws respectively. The word dharma is used variously but the central meaning of a definite injunction or rule or some kind of arrangement remains the common strain throughout.
In the context of property rights we have this from the Taitiriya Samhita(3.10.9.4): Manu putrebhyo dayam vyabhajat (Manu apportioned property among the sons). The same text (2.5.2.7) talks of the inheritance of the eldest son. Rigveda (8.30.3) contains a prayer for not digressing the path of the ancestors laid down by Manu ( mā nah pathah pitryān mānavādadhi dǖram naista parāvatah). The Taittiriya Samhita (2.2.10.2) says whatever Manu said is medicine (yadvai kincha Manuravadat tad bhaishajam). Similar is the declaration of Tandya Brahmana (Manurvai yatkinchavadat tad bheshajam bheshajatayai). So we note that matters like ownership of land, inheritance and partition of property did concern the ancient vedic society as much as they do today.
The concept of four ends of human life (purusharthas) viz. dharma ( piety), artha (wealth), kama ( fulfilling desires) and moksha ( liberation) to be pursued in order of precedence as listed, serve as fair guide to regulate human life in an orderly fashion. Laws framed in deference to this precedence serve the need of society in a better way.
Thus we can say that judicial administration among ancient societies was nowhere as well established as in India. The king was the source of law and he in turn depended on a well laid down procedure and rules concerning the various spheres of human behaviour. It was neither possible nor desirable to have a consolidated code in one compendium. The varieties in local traditions and despotic nature of the state did not countenance a monolithic judicial code. However, the extent Dharmashastric literature along with the Arthashastric tradition has evidence enough to show that the Indians had so thoroughly applied their mind on the basis and nature of law relating to both civil and criminal spheres of human behaviour from a fairly ancient period. The Manu Smriti has prime position followed by Yajnavalkya, Narada and Brihaspati Smriti dealing with different topics of ancient Indian law.
The Manu Smriti gives four sources of law viz. 1.Shruti or the Vedas, 2.Smriti, 3. Custom and 4. One’s own inclination. Manu clarifies that in case of conflict Shruti will prevail over Smriti and both these will have precedence over the last two. According to Yajnavalkya the law of the Smritis is the law enforced by the courts of justice. The same is supplanted by equity and custom.
No wonder then that enlightened rulers even among the aliens in appreciation of the well established judicial tradition in India tried to formulate laws as far as possible in sync with the prevailing customs and practices. Thus we find the great Mughals issuing farmans and sanads granting some level of autonomy and privileges to the khap panchayats in matters governing the socio religious life of the people. Similarly the British found it expedient to largely draw upon the ancient Indian law books like the Manusmriti to frame the code for governance of India. India being a vast country of heterogeneous character in matters of laws on inheritance and succession as per local custom the British had not tinkered with the customary law. Modernity of the west was not sought to be implanted for obvious reasons – what did not concern them did not pinch them was perhaps the case even in the face of stark distortions that had taken place in certain laws based on custom. More poignant was the situation arising out of the denial of the right of inheritance to the female progeny in landed property in various parts of the country. The customary safeguards evolved by the older generations had sadly been long abandoned.
It was therefore natural that independent India took early steps in reforming several laws to mitigate the situation, though the initial attempt in the amorphous form of the famous Hindu Code Bill met with stiff opposition from no less a person than the then President of India Dr. Rajendra Prasad. What followed was the piecemeal enactment of the spirit of the original bill. The amended land laws brought up by the Punjab government presented a unique dilemma before the peasantry in north India, especially the Jats who have been the principal inheritors of the traditional vedic ways of life. The grant of the right of inheritance in land to the girl child on the one hand was seen to provide the much needed succour to the family with no male child it gave occasion to sow seeds of distrust and dissension among sister and brother. Since the system in the latter case sought to take away what was sought to be given away- the bride givers being compensated when they take the role of bride takers. In the former case what was apparently seen as a measure for female empowerment turned out to be almost a fiasco. Land being an immovable asset the inheritor female could not control or properly manage it unless she left her marital home and settled on her parental land, an option leading to several complication of social behaviour so vital in a rural setting. Such female inheritors of their parental land sell it off and quit leaving behind bitter co-laterals snapping all kinship ties only to be missed on all social occasions. We are quite familiar with emotional strands that are witnessed on occasions like Bhat when sisters eagerly await their brothers’ arrival.
How custom has scored over law is well demonstrated in the way the Jats have responded to the situation wherever the inheritance law has been amended to grant right of succession to the girl child. The general trend noted among the Jats of Haryana is of sisters voluntarily coming forward to give up their rights in favour of their brothers at the time of the partitioning of parental land. The dictum of quid pro quo has been well demonstrated in their approach. The scenario brings into sharp focus the fallacy of the rule of thumb enacted in the form of law in utter disregard of the consequences. Perhaps there is a case for a re-look at the law in view of the situation on the ground. One way could be providing in the inheritance laws safeguards and security to a girl who has no brother surviving her. But at the same time ultimate alienation of land should be prevented.
Closely related to the above is the issue of the endemically disproportionate sex ratio in the demographic spectrum of the region where the Jats mostly abound. The phenomenon is attributed by observers, without citing any empirical data, to the practices imbedded against the girl child like female infanticide, willful neglect of health care and nutrition in case of the female population in general and the girl child in particular leading to high mortality rate, elimination of female fetuses through abortions with the aid of modern technologies for sex determination and last but not the least the recourse to intervention of Indian system of medicine for believed to be successful in ensuring male progeny in majority of cases. But it would be unfair to expect one to one ratio in respect of the two different sexes. Biological reasons could be responsible for the tilt in favour of the male child. After all countries like China and South Korea also do not show a better female to male ratio. Nearer home states like Maharashtra and Gujarat don’t do better either. In fact there appears to be a north south divide in terms of sex ratio paradigm. The unequal ratio today is again not a new phenomenon in the north. The figures of the last century and more present almost the same unequal ratio showing bias against the girl child. Our past also hearkens us no less in craving for begetting the male child. The Vedic prayers abound in beseeching the gods for various favours, the one most frequently repeated is the one for having sons who would be brave and virile, capable to devour the adversaries. The psyche of communities owning and living by land tilling is similarly fashioned to prefer a male child. The law In any case the presumption of sex specific abortions needs to be established after a steady study of the analysis of under10 population over a period of time. Such study would also be helpful in evaluating the efficacy of the law enacted by the state declaring prenatal sex determination test as criminal act.
A side light on the deteriorating female population in the northern and north western regions affecting the time honoured customs of caste endogamy and of limited geographical spread of marriages would be quite relevant here. There are frequent reports of young people across Haryana, unable to find brides nearer home or in their region, look for matrimony in far off regions in the south and east giving a neat go by to the time honoured custom of caste endogamy. Even barriers of language have not proved inhibiting factors in such cases. The implications of such marriages would come to the surface perhaps in their next generations. For the present such mongrel couples are reported to be doing well. Such marriages may prove an alternative to the difficulties in maintaining the rule of prohibitions of four gotras among the Jats, who in several places are moving slowly towards consanguineous marriages by first (in the early last century) deleting the gotra of mother’s mother’s father and then later (towards the end of the last century) of father’s mother’s father from the prohibited list.
So we notice that in one instance law standing in way of custom is over ruled (hoodwinked!) by mutual consent and in another custom coming in the way of necessity supported by law is over ruled (bypassed!) again by mutual consent. But in both examples we can read an under current of inter dependency of the individual and the society. The Jats have proved themselves as apt in finding solutions to knotty problems as they have ever been doing in their vocation of farming and cattle rearing since ages.
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