hindu law

A PROJECT REPORT ON “ROLE OF CUSTOM IN HINDU LAW: A DETAILED STUDY”

MANIPAL UNIVERSITY JAIPUR SCHOOL OF LAW

Under the supervision of: -

Submitted By :-

Ms. Sushila Choudhary

Mukul Bajaj

Assistant Professor

151301052 B.A. LL.B (Hons.) Semester V Section-A

CERTIFICATE

This is to certify that Mr. MUKUL BAJAJ (15131052) student of B.A LL.B (hons) V Semester has completed his project file under my supervision. He has taken proper care and shown utmost sincerity in completion of this project. I further certify that this project is upto my expectation and as per the guidelines issued by the university.

DATE:Ms. Sushila Choudhary

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Ms. Sushila Choudhary and our HOD Dr. Vijaylaxmi Ma’am who gave me the golden opportunity to do this wonderful  project on the topic “Role of custom in Hindu law: a detailed study”, which also helped me in doing a lot of research and I came to know about so many new things. I am very thankful to them. Secondly, I would also like to thank my parents and friends who helped me a lot in finalizing this project within the limited time frame.

MUKUL BAJAJ (151301052)

Contents INTRODUCTION .................................................................................................................................. 5 DEFINITION .......................................................................................................................................... 6 KINDS OF CUSTOMS .......................................................................................................................... 7 THE ESSENTIALS OF A VALID CUSTOM ....................................................................................... 8 Custom outweighs written text of the law (Custom overrides Smriti) ..................................................11 BIBLIOGRAPHY ................................................................................................................................. 14

INTRODUCTION Custom is the parent of personal law in India along with other countries custom plays a very important part in Hindu Law. It modifies and supplements written law. It is one of the most important sources of Hindu Law Hindu sages have recognised good customs binding on Hindus. Where there is a conflict between a custom and the text of the smritis, such custom will override the text. Custom is based on unrecorded revelation and its observance is insisted on by the ancient writers. It is a source of law, because the customs are observed by those which are good and approved by the public. The codification of Hindu Law by way of enactments, such as Hindu Marriage Act 1955; Hindu Adoption and Maintenance Act, 1956; Hindu Minority and Guardianship Act, 1956 and the Hindu Succession Act, 1956 has checked those customs and usages which are out of date or unsuited to modern conditions. All these four Acts have accepted some customs and usages which are not opposed to public policy. The usages opposed to public policy are such as poligamy and dowry, sati, child marriage etc In all four Acts it has been provided that“Save as otherwise expressly provided in the Act (a) Any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act ”. Custom is recognized as a source of Hindu Law even a fter the codification of Hindu Law, except when it is forbidden by any express enactment or law.

DEFINITION Customs may be defined as the mode of life adopted by a set of people or by all people of a  particular locality or of entire country. Custom is defined as the unwritten law sanctioned by immemorial usage. Custom may be defined as a habitual course of conduct generally observed in a community. The Sanskrit equivalent of custom is Sadachara which means the ‘approved usage’ or the ‘usage of a virtuous man’. Custom is thus a rule which as result of very long usage has obtained the force of law in a particular community. According to Manu “Immemorial custom is a transcendent law”. According to Narada “Custom is powerful and overrides sacred law”. Custom in its legal sense means a rule exceptional to the general law, a rule in which a  particular family, class or district has from long usage obtained the force of law. In every act of Hindu law, custom has been defined as under: “The expression ‘custom’ and ‘usage’ signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family”.

KINDS OF CUSTOMS The customs generally recognized by Hindu law may be divided into three categories namely local, class and family customs.

1. LOCAL CUSTOMS Local customs are those customs which are confined to a particular locality like a village or town, district, state, country and are binding on all inhabitants of that locality. The general custom of the realm is that which prevails throughout the country and constitutes one of the sources of the common law of the land.

2. CLASS CUSTOMS OR CASTE CUSTOMS Class customs are the customs of a caste or set of the community or the followers of a  particular profession or occupation such as agriculture, trade, mechanical art and the like. For example, in Venkata Subbaiah v. Bhujangayya, it has been held, that the custom among the Kamma caste of Andhra Pradesh that the presents given to the  bridegroom by the bride’s people should be returned to them in the event of bride dying issueless and intestate, is established beyond all reasonable doubt. In Ningol Angothri v. Nangmaijing Sharma, it was held that the divorced daughters among Manipuris are entitled to the right of reside nce in paternal home. In Umara Parwathi v. Bhagawathi, it has been held that among the Krishnavaka community and Nattukottai Chettis of Tamil Nadu there is custom of patnibhhagam  prevalent according to which the division of property is made according to the number of wives and sons by each wife constituting a unit and wife themselves are not entitled to any share;

3. FAMILY CUSTOM Family customs are those customs which are confined to a particular family only and do not apply to persons who are not members of such famil y. In Soorendranath Roy v. Heeramonee Burmoneah, the Privy Council observed “Custom binding inheritance in a particular family has long been recognised in India”. For example, the custom of Jyeshthansha (larger share) under which the eldest son gets a larger sha re in the property left by father than other sons. A custom that a property should remain impartiable being held by one man at a time is another instance of a family custom.

THE ESSENTIALS OF A VALID CUSTOM Custom to be valid and having the force of law, must be continuous for a long time, (ancient) uniform, certain, reasonable, moral and not opposed to public policy and not in derogation of Hindu law or statute.

ANTIQUITY OR ANCIENT In Hindu Law, immemorial custom has ‘ proprio vigore’  efficacy of Law. The Latin term  proprio vigore means 'by its own force’. The term efficacy of law means ‘state of being of  producing the desired result of law'. In Hindu Law, ancient custom by itself is in force as law. The custom must be immemorial. To be a valid custom the custom must be of long standing nature which would indicate that by common consent, it has been accepted as the law governing a particular locality class or family. How long a custom must be in use for being regarded as ancient cannot be laid down by any hard and fast rules. The Mitakshara says that it must be 100 years in use. It has been held in earlier case that custom must be proved to have existed from time preceding the memory of man or at any rate it must have existed as far as living testimony can establish. In Subhani v. Nawab, [ILR (1941) Lah.154] it was held that custom must be ancient but it is not of the essence of this rule that its antiquity must in every case, be carried back to a period beyond the memory of man In Babu Narain Lakras v. Saboosa [1949 ALJ 360] the Privy Council said that in India a custom need not be immemorial but the requirement of long usage is essential

Certain Clear and Unambiguous A custom must be certain. It must not be vague, ambiguous, indefinite. In order to make a custom definite and certain, universality its observance is necessary. If a custom is varied or changed from time to time, there will be no universalit y and consequently it will not be a valid custom. The recognition of any custom can be extended only when its clarity or unambiguity is proved.

Reasonable The custom must be reasonable. Reasonable means the customs should not be contrary to  public policy and they must be in accordance with the rules of justice, equity and good conscience An unreasonable custom is void. Customs differ from place to place and reasonableness or unreasonableness is a matter of social value. Therefore, in reasonableness of a custom is to be determined in the context of societ y which it exists and not determined by the

contemporary values of every society, although, there may be certain rules or practices which are considered unreasonable.

Invariability or Continuity Invariability or continuity of a custom is essential for its acceptance as a valid custom. Also, continuity of a custom is as essential as its antiquity. To obtain legal existence for any custom a clear proof of its continuous observance is necessary. If there is a breach of a custom in a  particular be cannot be said that the custom is destroyed because it may continue applicable thereafter. In the case of class custom and local customs, once they are recognised by the Courts there is no need to give proof of their continuity Rather the part y who alleged their continuance would have to prove discontinuity. However, in case of family customs positive proof of their continuance is always required. In Rajavinnaha v Ravivinnaha, [(1974) 4 IA 76], the Privy Council observed, "We cannot find any principle or authority, for holding that a point of law, a manner of descent of an ordinary estate, depending solely on family usage may not be discontinued so as to let in the ordinary law succession. It is of the essence of the family usages that they should be certain invariable, and continuous and well established. Discontinuance must be held to destroy them". Such a discontinuance m be accidental or intentional in either case the legal effect of custom may be negatived where it is discontinued otherwise it would come to an end. A custom loses its effect also by abandonment. Mayne says that in the case of widely spread local custom, want of continuity would be the evidence that it had never had a legal existence, but it is different to imagine that such a custom, once thoroughly established, would come to a sudden end. In case that a custom is established one hundred years back or existed, but, there is not a single instance or other evidence available that after that time it not a has been ever in practice it will be taken in the sense that people had abandoned it.

Uniform To make a custom a valid one, it is necessary that it is observed uniformly. There must be uniformity in its observance. If it is not observed uniformly then it is not a valid custom. A  belief in the propriety of the imperative nature of a particular course of conduct, produces a uniformity of behaviour in following it, and a uniformity of behaviour in following a particular cause of conduct produces belief that it is imperative or proper to do so. When from either cause or from both causes, a uniform and persistent usage has moulded the life and regulated the dealing of a particular class or community. it becomes a custom.

Not immoral Customs which are immoral will not be enforced even though they may be clearly established. Whether a custom is immoral must be tested by the sense of the community as a whole and not of a section thereof. Although the standards of morality vary from time to time, from place to  place and from community to community, the Courts take upon themselves the responsibility of determining what is moral in the facts and circumstances of the particular case. The immorality of custom is to be tested in the context of consensus of the whole community not of a part of it. In Hira v. Radha, [ILR 37 Bom. 177] it was held that where a temple dancing girl is allowed to adopt a girl with intention of training her up an immoral profession is invalid. An alleged custom permitting a woman to leave her husband and to remarry without his consent a custom permitting husband or to pronounce divorce on payment of a sum of money to wife without her consent or custom under which adoptive parents pay a sum of money to natural  parents at the time of adoption, is void being against morality. However, in Gopikrishna v. Mt. Jugoo, [(1936) 63 IA 235] it has been held that custom which dissolves a marriage and permits the wife to remarry on her abandonment and desertion by the husband is va lid and not against morality. Similarly, in Chitty v Chitty: [(1894) 17 Mad. 425l it has been held that a custom  permitting divorce by mutual consent and remarriage on repayment by one party to the other of the actual expenses of original marriage is valid and not against morality.

Not opposed to public policy A custom which is opposed to public policy is void. In Rajah Vurmah v Ravi varmaih, [(1876) 4 IA 76] the Privy Council held that a custom permitting the trustee of religious endowment to sell the trust was void and contrary to public policy.

Not opposed to law In order that the custom be a valid one, it must not be opposed to law for the time being in force. A custom must not be contrary to mandatory provision of a law. In this context, ‘law’ includes not only statutory law but also the mandatory texts of Dharmashastra law. But, here  by being opposed to law, we mean opposed to statutory law. A custom opposed to sacred l aw  prevails, but no custom opposed to statutory law can be given effect. Hence the custom must conform to Statute Law

Observance as of right The custom must have been observed as of right. The custom must have been followed openly. It must not be imposed through fear or use of force but must be observed as of right. It should also have been observed peaceably.

Consistency A custom must not come into conflict with the other established customs. There must be consistency among the customs it In Bahusami Reddiar v Balakrishna Reddiar [AIR 1957 Mad. 971], it was held that although requisites of a valid custom that the same should to ancient, certain and reasonable and that it should also not be oppose decency or morality.

Custom outweighs written text of the law (Custom overrides Smriti) Fullest effect is given to custom both by courts and by legislation. W hile supporting the concept of custom overrides smriti. Mayne says thus: While the writers on the Mimamsa do not recognise local or tribal customs in respect of religious matters, local or tribal customs of a secular nature fall according to them outside the scope of positive injunction of universal application. Further the requirement if it should not be opposed to the smritis means that it should not be contradicted by an obligatory text. is enough if it is positively condemned by the smritis. There are very few cases in which express prohibitions in the smritis are contravened  by a custom. In most of the cases, the prohibitions themselves are not imperative, but are only monetary. Positive rules of succession which are varied by custom cannot be read as  prohibitions preventing a different rule from being established by custom. In any event, it clear that any condemnation in the smritis, express or implied, will not affect the validity of custom as a matter of civil law. The exact legal status of custom as itself a rule of smriti which has  been emphatically laid down by Medhatithi, the commentator of Manu, is almost conclusive on this question. And the Mitakshara quotes texts to the effect that even practices expressly inculcated by the sacred ordinances may become obsolete and should be abandoned if opposed to public opinion. Courts have also given importance to customs. The Judicial Committee in the Ramnad case said, "Under the Hindu system of la w, clear proof of usage will outweigh the written text of the law”. In Collector of Madurai Mootoo v. Ramalinga Sethupathy, [(1868) 12 MIA 397] which is known as Ramnad case, Sir James Colville, Justice stated that "clear proof of usage will out weigh the written text of law”. The facts of this case are that the zamindar of Ramnad, which is famous zamindari in Madras Presidency died without sons. He did not authorise his wife to adopt a son. However, his wife Rani Parvathavardhani who succeeded to the zamindari had adopted a son with the assent of the ‘sapindas’  of her husband. After the death of Rani Parvathavardhani the Collector, Madras eschewed the zamindari as the zamindar has no children. The adopted son made an application to the Collector stating that he was a valid legal heir of the zamindari. The Collector rejected his application by stating that there was no system

of adoption in Dravida school. Then the adopted son appealed to the Privy Council. The question was whether under the Dravida School of Hindu Law an adoption made by a without the husband's authority was when there was consent of sapinda. Examples of such customary practices were given to show that he the of deceased husband's sapindas a valid adoption could made by the widow. The other party presented that the relevant text of the s was to the effect that a woman shall not adopt except with her husband, permission However, the Judicial Committee stated that "custom is believed to be based on unrecorded revelation and its observance is insisted upon by the ancient writers. Custom in its legal sense means, a rule exceptional to the general law, a rule which is a particular cla ss, district or family has, from long usage obtained the force of law. It must be ancient, certain, reasonable and continuous and not being a derogation of the general rules of law. must be strictly construed. But custom which is either immoral or opposed to public policy or forbidden by statute cannot  be recognised to be valid”. The Privy Council in an oft-quoted passage l aid down. "The remoter sources of Hindu Law are common to all the different schools. The process by which those schools have been developed seems to have been of this kind. Works universally or very generally received became the subject of subsequent commentaries. The commentator put his own gloss on the ancient text and his authority having been received in one and rejected in another part of India. Schools with conflicting doctrine arose" It has been further observed by Sir James Colvile that "The duty of an European Judge who is under the obligation to administer Hindu Law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular s chool which governs the District with which he has to deal, and has there been sanctioned by usage. For under the Hindu system of Law, clear proof of usage will outweigh the written text of the law The Privy Council gave the judgment that in t he Dravida country in the absence of authority from the husband, a widow may adopt a son with the assent of his kindred.

CONCLUSION A custom should establish before the Court by means of clear and unambiguous evidence. If the party who plead a custom has produced evidence of reliable nature showing that such custom prevails in that community, the evidence can be accepted and custom is proved and is enforced by the Court. As regards the nature and quantum of proof of custom, the following  propositions enunciated by the Madras High Court in Gopalayyan v Ragupatiayyan, [7 MHCR 250] are very valuable: "I) The evidence should be such as to prove the u niformity and continuity of the usage and the conviction of those following it that they were acting in accordance with law and this conviction must be inferred from the evidence. II) Evidence of the acts of the kind, acquiescence in those acts; decisions of courts, or even Panchayats, upholding such acts, statements of experienced and competent persons of their  belief that such acts were legal and valid, will all be admissible: but it is obvious that although admissible evidence of this latter kind will be of little weight if supported by actual examples of the usage asserted. It is for a claimant to prove the existence of the custom on which he bases his claim; he cannot succeed on the basis that his opponent did not succeed in disproving the custom. When a custom has been proved, the burden to prove its discontinuance lies on the  party who alleges such discontinuance. A court takes a judicial notice of a custom if such custom is so clearly established that no further evidence of its existence is necessary When a custom or usage is repeatedly brought to the notice of the Court, such a cust om will form a part of the law without any need proof of such a custom in every case. of have taken judicial notice of that cases it is said that the Courts custom. Thus, we can see that role of custom as a source of Hindu law is very important as it is the major source of Hindu law

BIBLIOGRAPHY 1. Dr. Tahir Mahmood, Introduction to Hindu Law, 2014 Edition, Universal Law Publishing Co., 2014. 2. Prof. Kusum, Family Law I, 4th Edition, LexisNexis, 2015 3. Dr. S.R. Myneni, Hindu Law, 1 st Edition, Asia Law House, 2015.