Role of Customs in Hindu Law

Custom could also be a singular contribution of the Historic School of Jurisprudence that it conclusively established that in early societies, custom was the foremost vehicle of legal development in Hindu Law. The customs are important for maintaining balance and peace during a society as not against morality. From the earliest period custom (‘achara’) is taken into account the absolute best, ‘dharma.’ 

As defined by the Judicial Committee custom signifies a rule which during a specific family or during a specific class or district has from long usage obtained the force of law. Shruti and Smriti have given significance to customs and held customs as supreme law and have advised the Kings to supply decisions supported customs after due religious consideration. Custom plays an enormous part in Hindu law and is accepted as a neighborhood of the Indian system.

A selection of Hindu tribal customs concerning own status and inheritance are also acknowledged despite the codification efforts of the central government. Section 2(2) of The Hindu Marriage Act and thus the Hindu Succession Act has privileged to the recognition of tribal customary laws and practices of “Scheduled Tribes.”

Consistent with Hindu law; ceremonies “of some kinds are completely vital.” as an example, “courts have attached great importance to the performance of Saptapadi or the ceremony of seven steps which are taken under consideration to be the foremost important of ceremonies.”

However, it should be noted that the performance of ceremonies apart from those referred are recognized by the Indian Courts as the ceremonies are permitted by the custom of the community or caste to which the parties belong. A marriage during a form which is out of practice or obsolete is not necessarily prohibited by Hindu law.

Apart from the Shruti, the custom is taken under consideration as the principal source of Hindu Law. Customary Hindu practices in marriage and divorce are breakaways the traditional norms recognized under Indian law.

Introduction

Custom in law is the well-known form of behavior which can be objectively verified within a selected social setting. A claim is often administered in defense of “what has always been done and accepted by law.” Related is the thought of prescription; a right enjoyed through long custom rather than positive law. Custom is taken into account a third source of Hindu law.

On the earlier period, custom was considered the absolute best dharma. As defined by the judicial committee custom signifies a rule which during a specific class or district has from long usage obtained the force of law. Custom could also be a principal source and its position is next to the shrutis and smritis but usage of custom prevails over the smritis. It’s superior to written law. Custom is recognised as a significant source of law under the Indian system.

Article 13(1) of India’s Constitution provides that when the Constitution entered into force & all previous laws that were erratic with the Constitution was considered void. The Constitution defines, ‘law’ to include, “custom or usage” having within the territory of India the force of law.”

History

From the earliest period custom (‘achara’) is considered the very best, ‘dharma.’ As defined by the Judicial Committee custom signifies a rule which during a particular family or during a particular class or district has from long usage obtained the force of law. From the time back, ‘Achara’ that’s custom is considered the very best of all ‘Dharma’. Custom varies from area to area and family to family. Customs aren’t static rather they’re such they keep changing and evolve with time. Consistent with manusmriti if the custom is proved it’ll overpower and prevail over transcription or laws.

Concept

Customs are often considered because of the principal source for the event of the Hindu Law. Custom in common parlance is an act or behavior which is repetitive or is traditionally accepted or also can be defined as a habitual practice that an individual is uniformly following for an extended time. It also can be termed as ‘Rule of Conduct.’ 

Principal Sources of Law — Customs Study on ancient societies show that the lives of the primitives were dictated by the customs which developed during that point period due to the circumstances. When a particular activity is performed in a certain way, many repeatedly, it becomes a custom. Customs have played a serious role in forming ancient Hindu Law.

Classification

 Without Sanctions

Customs without sanctions are those which are not obligatory and are followed thanks to the pressure of the society. It’s stated as ‘positive morality.’

With Sanctions

Customs which have sanctions to be those which are enforced by the ruling body. 

These customs are in practice in our legal system. These are again shared into two types :

Legal Customs

Act as stringent rules that are meant to be followed by everyone and action is taken against anyone who breaks them. They are recognised by the courts and are a part of the law.

Two Aspects

Local Customs 

Local customs are those sorts of customs that exist during a certain geographical locality and are thus a part of that place’s culture. It’s specific thereto place alone. However, when certain people migrate, they take their customs with them. And so, local customs are then further divided into two parts — geographical local customs and private local customs

General Customs

A general custom may be a custom that’s not specific to one locality, but rather it’s followed by the entire nation or country. They’re also a part of the law.

Conventional Customs

A conventional custom is a longtime ‘usage’ which is taken into account legally binding because it’s been incorporated in an expressly stated or implied contract. Before a court of law treats a standard custom as legally binding, certain prerequisites need to be fulfilled. These are:-

It must be shown that the convention is clearly established and also that the contracting parties are fully conscious of it. There’s no fixed period before which a convention must be observed before it’s recognised as binding.

The convention cannot alter the overall law of the land.

It must be reasonable. Similar to legal customs, conventional customs are often divided into

  • General
  • Local

Fundamentals of a Legitimate Custom

A custom will only be considered a legitimate law with a binding force if these requirements are fulfilled:

Immemorial (Antiquity) 

Custom must be ancient or immemorial in order that it’s going to be considered as a legitimate binding custom.

Certainty

Custom has got to clearly define, it can’t be vague and confusing.

Juridical Nature

Custom must be of juridical nature. A custom must ask legal relations. A mere intended practice not conceived of as being supported any rule of right or obligation does not amount to a legal custom.

Rational

Custom must be within boundaries of the reason for it to be considered legally binding. It should be supported the proper to be enforceable Therefore, custom would be deliberated unreasonable if it opposes the principles of justice, equality, and good conscience.

Invariable and continuous

Customs to be valid have got to be practiced for a selected period of your time and will be still alive. It might be taken as evidence for having the force of law and for having custom accepted within the eyes of laws. It should be followed with none interruption. If a custom isn’t continued for a period of your time or is discontinued it involves an end and such tradition or practice is not any longer considered as a custom.

Compulsory Observance 

A custom to be considered valid, it must are observed since the past with no interruptions and must be considered by the people following it as a binding rule of law.

Conventionality with Law and public morality 

Custom must not go against public policy and law of the land. If the law makes it forbidden, it’ll not be considered a legitimate custom.

The unanimity of Opinion 

A universally accepted customs are going to be considered valid• Peaceable Enjoyment — If everyone follows and enjoys the custom during a peaceful manner, only then will it’s considered valid.

Consistency

There should be consistency between customs. Two, customs that have opposing viewpoints can’t be considered valid.

Provisions

Section-3 of The Hindu Marriage Act, 1955 defines custom as a rule which is followed for an extended time and has obtained the force of law among people of the Hindu community. It also specified that custom must be ancient, must be realistic, and it should not be in derogation to the laws of the country. “Custom” and “usage” under Codified Hindu Law:

Under the codified Hindu Law, the words “custom” and “usage” are defined to suggest any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus ‘in any local range, tribe, community, group or family.

Moreover, it’s expressly provided by all the four major enactments of Hindu law (namely, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956 and thus the Hindu Minority and Guardianship Act, 1956) that, unless otherwise so provided expressly in any of these enactments, any custom or usage effective immediately before the commencement of the respective enactments is to cease to possess effect with regard to any matter that a provision has been made within the said Acts.

S. 29(2) of the Hindu Marriage Act, 1955, which lays down that nothing therein Act is to be deemed to affect any right recognised by custom to urge the dissolution of a Hindu marriage, solemnised either before or after the commencement of the Hindu Marriage Act.

Amendments

The Hindu Succession Act of 1956 strove to get rid of this discrimination as is clear from the very fact that before the codification of the Succession laws within the Hindu Succession Act in 1956, the womenfolk during a family, held only two sorts of property — stridhan and woman’s estate. 

However, after the codification, all the discrepancies within the laws of varied schools were abolished and therefore, the females were allowed the proper to ownership of all properties attained or possessed under a will, gift, award, document or a decree of a court commending limited estate before and after signing of the Act, abolishing their “limited owner” status.

Whatever she has gained or acquired legally before or after the commencement of the Act, became her absolute property, and she or he became absolutely the owner. Custom and Usages under codified Hindu Law with the codification of Hindu law, many customs were eradicated like the sati system. 

The Sati System which was earlier followed by the Hindus, during which a widow sacrifices by sitting on the highest of the deceased husband’s funeral. Earlier women weren’t given preference for succession, with the codification of Hindu law it brought into picture The Hindu Succession Act, 1956 gave equal treatment to sons and daughters as in matters of succession. 

Narad Smriti deliberated customs to be very powerful. Codified Hindu Law has given a crucial place to the custom and usages and thought of it as a parent of Hindu law, but it’s limited to a certain extent because of the customs need to be expressly proved or delivered to the notice to determine it as a law.

Custom under the ‘Hindu Marriage Act 1955’ has been utilized in three situations. Firstly, the marriages are often solicited as per the customary tradition which is followed by the party. Secondly, divorce is often obtained by parties on the prevailing custom and usages. Thirdly, adoption is often done as per the customary rules.

Case Studies

Collector of Madura v. MootooRamalinga:-The Privy Council held that “under the Hindu system of law a clear proof of usage will outweigh the written text of the law.

Vinod Kumar Sethi v. Punjab State:- The supreme court gave a really important decision with reference to stridhan during this case. The court said the gifts which are received during the wedding are stridhan. It also divided stridhan into three categories.

First, the gifts gifted by her family and friends for her own use. In this sort of gifts she is going to have absolute ownership.

Secondly, gifts on which she and her husband have a joint right, wife ownership won’t be disregarded. Albeit marriage breaks or dissolves, her right over those gifts will exist.

Thirdly, those gifts are given for the utilization of the husband. So, the stridhan will fall into the first two categories only.

Bhai SherJang Singh v. Smt. Virinder Kaur:-During this case the respondent was married to Mr. Jang singh. At the time of marriage she was giving various valuables like clothes, electronics, cash, ornaments, furniture from her parents, family and relatives. The husband was happening a business trip then he asked the wife to offer all the property to his parents.

She did so. Later she came to understand that it had been her husband decided to desert her. Her in-laws didn’t allow her to wear ornaments which she was gifted at the time of marriage. She was not given permission to secure them back. Her in-laws sold the ornaments without her consent.

The Court ruled that the husband and therefore, the wife have joint right the gifts received during the wedding but certain things like ornaments are meant to be employed by the wife only. No other person can exercise any right over the gifts received during marriage aside from husband and wife. Everything which is obtainable to the bride on her marriage by the bride’s relative is her “Stridhan.” Groom side is bound by law to return all such property, ornaments, money and each such belonging.

Conclusion

Hindu Law may be a law which is taken into account to be of divine nature because it is believed that it’s been developed on the words of god, theories given by God. It’s one of the foremost ancient laws and was written by various rishis. Sources of Hindu law are distributed into two categories namely ancient sources and modern sources.

Ancient sources of Hindu law include shruti, smriti, commentaries digests, and customs & usages. Modern sources include judgements and precedents, legislation, justice, equity and good conscience. Among the varied ancient sources of Hindu law customs and usages are considered one among the foremost important sources of Hindu law. They’re considered as a parent of Hindu law. Custom and usages have thus played a serious role in developing Hindu law. For custom to have the colour of a rule of law, it is necessary for the party claiming it to prove that such custom is ancient, certain and reasonable.

Questions

Question 1: What are the customs?

Answer: A habitual course of conduct in a particular community.

Question 2: Are customs essential for Hindu Marriages?

Answer: Saptapadi is essential for a valid marriage as per Hindu Marriage Act, 1955.

Question 3: Are women and children born from the wedding provided rights in the property?

Answer: Yes

Question 4: Are customs helpful in codification of Hindu Laws?

Answer: Yes

Question 5:Can a Hindu claim for the rights in court, on the basis of customs?

Answer: Yes

References

https://blog.ipleaders.in/hindu-law-custom/

https://lawnotesforstudents.blogspot.com/2017/06/hindu-law-ancient-sources-of-hindu-law.html

https://www.toppr.com/guides/business-law/introduction-to-law/principle-sources-of-indian-law-customs/

https://www.loc.gov/law/help/customary-law/india.php

http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/Uni-5.pdf

https://www.lawnn.com/sources-of-hindu-law/

https://www.lawteacher.net/free-law-essays/islamic-law/customs-is-important-source-of-law.php

http://14.139.60.114:8080/jspui/bitstream/123456789/15103/1/020_Hindu%20Law_Its%20Character%20and%20Evolution%20(213-235).pdf

http://www.legalservicesindia.com/article/329/Sources-of-Hindu-Law.html

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