Customary Laws and their legal Aspects in India

 

Custom is particular pattern of behavior or actions that are established in the community. It is a mechanism for ensuring social control, a set of directions for the humans to live within that community and for the society to be alive perpetually.

The concept of custom is defined and opined upon by many scholars. Custom is a word which is used to apply to the totality of behavior patterns which are carried by tradition and lodged in the group, as contrasted with mere random personal activities of the individual.[1] On the other hand Radin iterated that customs are regarded as habitual ways of conduct among social groups.[2] Carter abided by the definition that custom is the uniformity of conduct of all persons under like circumstances.[3]

Renowned jurists like sir john Salmond and Austin have defined what a custom is and their importance in the eye of society and politics. Sir John Salmond opined, “Custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principle of justice and public utility.”[4] Austin on the other hand defined custom as a “rule of conduct which the governed observed spontaneously and not in pursuance of law set by a political superior.”[5] Both of the above definitions of custom lay down its autonomy on the people of the state and not on the superior political party or the government of the state. The customs at the root of it are based on justice and satisfaction of the governed.

Furthermore when looking into the legal documents of the Indian Territory specifically, the Hindu code enumerates that custom and usage is, “any rule which having been continuously and uniformly observed for a long time has obtained the force of law, in any local area, tribe, community, group or family, if it is certain and not unreasonable or opposed to public policy.”[6] The definition is very broad. Any rule when performed by a family or as wide as a local area, uniformly and continuously obtains the force of law. The only limitation it faces is that the custom and usage must be certain, reasonable and must not oppose the public policy at large.

Various high courts have time and again defined customs while giving judgments. In the case of Subramaniam Chettiar v. Kumarappa Chettiar[7], custom was defined as a rule which in particular family or in a particular district has from long usage obtained the force of law. It must be ancient, certain and reasonable. Custom has been defines as a rule which in a particular family or in a particular district or in a particular sect, class or tribe has from long usage obtained the force of law.[8] Sir Hari Singh in his book “The Hindu Code” interpreted the definition of custom given in the Hur Prasad v. Sheo Dayal as, “custom is an established practice at variance with the general law.”[9]

Customs can be classified into two major groups- customs without binding obligation and customs with binding obligation. Any custom which is less significant or not at all significant when looking into the social life of a certain group of people falls within the scope of customs without binding obligation. There customs have whatsoever no sort of obligation attached to them. The consequences of non-observance of these customs include social disapproval or social outscaste. It has no legal sanction attached to it. Thus these customs are called social customs. On the other hands we have customs which are certain, strict and dictate the duties and obligation of people in the society. They generally govern the following aspects of social life- marriage and upbringing of children, transfer of property, and modes of consummating agreements. These customs do not govern decorum or formalities; rather they enumerate the serious business of society to secure guarantee satisfactory conditions for collective life.[10] These customs on fulfilling tests laid down by the judiciary or other legal forums gain the force of law and violation of the same is faced with legal sanctions. These customs can be further divided into legal customs and conventional customs. The present topic governs largely the specifics of legal customs.

In the words of Sir C.K. Allen, the effect of sanction is negative rather than positive: if the custom is not followed, certain desired consequences will not be brought about.[11] When we speak of legal customs they are very stringent, i.e., there is no scope for not following however small an act is. It operates as a binding rule of law and breach of such an act is a breach of positive duty. Thus, “A legal custom is one whose legal authority is absolute- one which in itself and proprio vigore possesses the force of law- Salmond.”[12] Legal customs are further divided into two categories- as general custom and local custom.

General customs are those which prevail throughout the territory of the state and consequently become or is considered as a source of law of the land. Common law initially was considered as a general custom which was being followed by the society from the ancient times.[13] As per Robert Keeton, “A general custom should likewise fulfill certain conditions on and off chance that it is to be a wellspring law.” Local customs on the other hand are those which are practiced in one specific locality only and result as a source of law in that particular locality. In the west, the local customs are interpreted based on a district or town, i.e. a geographical location. In the case of India, local customs are defined based on two aspects the geography and personal custom. These are applicable as a source of law only for a defined locality, sect, tribe, family.[14] Sir Hari Singh Gour defines Tribal Custom as, “a custom confined to a particular tribe, caste or community.” Tribal customs in general are based on the geography. That particular custom of theirs extends to the district, town or even area that they occupy. In few other cases it is applicable to both the personal custom and geographical custom. Customs of the Adivasis are considered as both geographical custom and personal local custom.

A conventional Custom is that whose authority is based on the acceptance and incorporation of it in the form of agreement between the parties who choose to be bound by it. Conventional customs are referred to as usages in the English law. They are not sources of law which is of its own force or self imposed.[15] Conventional customs are those usages which have been practiced over a certain period of time and are part of a contract between the parties involved. They become legally binding only because those usages are a part of a contract incorporated. They do not possess any independent legal authority. General conventional customs are practiced uniformly in a specific domain. Local conventional customs are those which are practiced uniformly in a specific trade or transaction.

ESSENTIALS OF A VALID CUSTOM

In modern context the growth of custom has become slow. In recent times the society or even the court has given those customs, the pedestal of law only when they satisfy the essential of a valid custom. The courts authority to validate a custom as law is merely declaratory and not constitutive. For the custom to even be declared as a law they have to satisfy the conditions of a certain test which determines the existence and operation of that particular custom.[16] For a custom to be considered valid it could satisfy two types of essentials- formative essentials and operative essentials. Formative essentials include, antiquity, continuity, certainty, conscious acceptance as a right. When these essentials are met they are prima facie enforceable. At the same time they will not be enforced if the customs are unreasonable and they oppose public policy, morality and express enactments of legislature. These are operative elements and they need to be strictly proved for the customs to be rendered as unreasonable. Thus both formative and operative essentials are significant in determining the validity of a custom.

In India, the antiquity of a custom- their usage for so long that the memory of a man runneth not to the contrary is not useful. They do base the validity on a technical rule. The decision is based on facts and the circumstances of each case. However, the court has also taken the view that a date is necessary when the question of antiquity arises.[17] The courts have upheld the precedent that when a custom is fund to have existed at a particular date within living memory, it must be taken to be ancient and may be assumed to have existed prior to that date.[18] What is essential for the court to give the recognition of law is for the custom to be in usage for an invariably long period and proof that there is common consent to admit that custom as the governing rule of a family, class, sect, tribe, district or country. While the same is being proved one has to ensure that the custom is proved with certainty and there is no scope for doubt.[19] One has to understand that the custom must in theory at least have an origin as ancient as the law itself to which it is an exception. This is very important because every custom is in one way or the other an exception to a law in force.[20]

Discontinuity of a custom directly affects its stability. A custom must be definite and continuous. If the same has not be present it is presumed that the custom never existed in the first place. Blackstone states that any interruption within legal memory defeats the custom, “continua dico ita quod non fit legitime interrupta”.[21] When a custom is said to be uniform, the interpretation is that the custom is enforced by the concerned authorities as often as possible. When there is an interruption in the rights rendered by the custom, the said custom ceases to exist, irrespective of the period for which it was interrupted. Thus when the same right is rendered active, it is interpreted as a new custom and thus, the antiquity ceases to exist.[22]

Custom is generally observed as rights. Thus, when such a custom is asserted as a right it must be definite and certain. A custom must also be certain in the territory where it is said to be existing. More specifically, the custom’s extent of enforceability in the local territory- locality, town or district, must be definite. Moreover the custom must be certain about to whom it is applicable and to what extent it is applicable.

For a custom to be valid it must be accepted by the community consciously that it is legally binding and source of enforceable rights and obligations. Thus the community must accept that it is enforceable by law. Allen further goes on to say that the customs must be obligatory and not facultative.[23] Customs which arise or operate due to sympathy or habit are not capable of being generate as law or source of law.[24]

Salmond was of the opinion that “a custom in order to be deprived of legal efficacy, must be so obviously and seriously repugnant to right and reason that to enforce it as law would do more mischief than that which would result from the overturning of expectations and arrangement based on its presumed continuance and legal validity.”[25] For a custom to be enforced as a law it must be reasonable. it is pertinent to keep in mind that no amount of reasons can make a custom, the reasonableness is always determined by the social values. According to Allen, a custom’s unreasonableness must be proved for it to not be enforced by law and not its reasonableness. The determination of reasonableness is that of law and not of facts and circumstances. The Calcutta High Court, a custom is unreasonable if it is injurious to the multitude and prejudicial to the commonwealth.[26] At the same time, once a custom has been given the force of law and it results in the conflict with an imperative legal principle, the court in recent times have the power to put an end to it.

A custom to be valid must not oppose the morality, public policy and most importantly must not be expressly prohibited by the law. The question of morality is to be determined by the conscience of the court. Till a particular extent the morality can be determined based on the societal conventions and norms. But beyond that it is the opinion of the court. When a custom is detested by the degrees of decency or morality, they will not be enforced by the long irrespective of it antiquity, certainty and continuity. The Bombay high court abolished the custom of marriage to daughter’s daughter, irrespective of the fact that it was a custom practiced in the Reddiar community from Tirunelveli district because the custom was illegal and abhorrent to the morality.[27] A custom can be held as invalid based on its opposition to public policy. The restriction of public policy is very wide. And hence Justice Subha Rao, remarks that the doctrine of public policy is an untrustworthy guide and it varies with quality.[28] The scope of public policy can be defined as something in the interest of public welfare and public interest. A custom cannot exercise when the law explicitly states that any customs and usages prior to the enforcement of the act is void when they are in conflict with the legislations.[29]

Another essential is the unambiguous and clear proof that the custom existed. Since customs have an advantage of existing outside the scope of legislations they need to be proved strictly, stricti iuris.

LEGAL SYSTEM AND CUSTOMARY LAWS IN INDIA

It was in 1773 that the British decided that Indian should be governed by their laws with regards to family, religion and inheritance. Once this was decided in order to draft personal laws, large number of digests, ancients text, etc. were brought in translated and made into codes and drafts. This process resulted in the view that lesser bodies governing the customary laws were made. At the same time, the existing customary law bodies did not help much because they were restricted through the existing English imported codes and rules. As per the Hindu Law there was a conflict between customs and shastras, the customs were superior to the shastras. There were strict rules of evidence on the disappearance of the customary law and this was advantageous because proving customs which were not written was difficult.

The Constitution of India drafted in 1950 gives recognition to custom and customary practices. What it enumerates is that, all laws shall remain in force until they are amended or repealed. [30] Thus those laws which were enacted and are in force before the commencement of the constitution shall be in force until they are repealed or amended. Article 13 of the Indian constitution explicitly states that all custom and usages which have the force of law shall be considered as a law. However such customs which have the force of law but are in conflict with part III of the Indian constitution- fundamental rights shall be considered void.

The customs as we have seen before are inclusive of the customs and usages of the tribes in India. This recognition is given to them by way of article 13(3) (a) of the Indian constitution. Article 13 also states that these customs and usages are in accordance with the fundamental rights enumerated in the Indian Constitution. There is a significant difference between customs and customary law. For the custom to have the force of law, while they consist of antiquity, certainty, reasonableness and continuity have to not violate the morality, public policy and legislations in force. S.L. Doshi[31] states that social customs are under scattered pattern of living, religion, language, isolation an lifestyle oriented to hills and forests.

Recent judgments have reiterated the Supreme Court and High courts of India’s stand on the concept of custom and customary law under article 13 of the constitution. In the Sabrimala judgment[32] Justice Chandrachud in his dissenting opinion held that the custom’s definition cannot be restricted when it has a wider denotation. He was of the opinion that including personal laws on customs and usages has created a menace because they have escaped from judicial review. In the Triple Talaq judgment[33] also he opined that personal laws are not included in Article 13.

INDIAN SCENARIO ON PROVING THE EXISTENCE OF CUSTOM

In the Indian scenario, custom is questioned based on facts and the party who depends on the custom has to prove the existence of the custom and its validity.[34] However in certain cases when the same custom has come to the court on the question of its validity and force of law, it will be recognized irrespective of the proof being given by the party.[35] The court cannot create analogies and decide what the custom is or should be; all that it has to do is decide what the custom is and whether the same has been proved. Since the custom is a question of fact, the court cannot determine its validity by making theoretical generalizations.[36]

Customs may be proved by way of opinions of people who are aware of its existence or have any specific know-how about the customs, by way of any transactions that took place on the basis of customs in existence, by any particular claim stating the recognition or exercise or depart from the custom, by way of old traditions, by way of traditional decisions or even by way of authorized manuals on customary law[37].

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[1] Edward Sapir, “custom”, encyclopedia of the social science (New York), 4(1931): 658- 662.

[2] Mohanti, K.K., “Custom Vis-à-vis Law: Some Reflections on Marriage Customs and Rules Among Caste and Tribal Communities”, in “ADIVASI: Journal of the Scheduled Castes & Scheduled Tribes Research and Training Institutes”, Bhubaneswar, Vol. 44, No. 1 & 2, June & December 2004, p 13

[3] Mahajan, Dr. V.D., “Jurisprudence and Legal Theory”, (2007), Eastern Book Company, Lucknow, at p 254.

[4] Fitzgerald, P.J., M.A., “Salmond on Jurisprudence”, (1997)

[5] Fitzgerald, P.J., M.A, at p 191

[6][6] Section 3(a) of The Hindu Marriage Act, 1955; see also section 3(a) of The Hindu Adoptions and Maintenance Act, 19

[7] AIR 1955 Mad 144.

[8] Hur Prasad v. Sheo Dayal, 26 W. R. 55 (P.C.), Tondon, M. P., “Jurisprudence (Legal Theory)”, (2010), Allahabad Law Agency, Faridabad, at p 167.

[9] Gour, Sir Hari Singh, “The Hindu Code”, (1973), Law Publishers, Allahabad, Vol. I, at p 156.

[10] Bodenheimer, Edgar, “Jurisprudence: The Philosophy and the Method of Law”, First Indian Reprint (1996), Harvard University Press, U.S.A., at p 300.

[11] Allen,

[12] Fitzgerald, P.J., M.A, at p 192- 193

[13] Custom As A Source of Law, < http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/Uni-5.pdf>

[14] TripathI Bajai Narain Manj., p. 162

[15] Dias, R M W, “Jurisprudence”, First Indian Reprint (1994), Aditya Books Private Limited, New Delhi, at p 192

[16] Allen, C.K., Law in the Making. 7th Edition, Oxford University press, 1964. Universal law publishing Ltd. Delhi, First Indian Reprint, 1997, p 129- 130

[17] Nolin Behari v. Hari Pada, AIR 1934 Cal 452

[18] Kunwar Basant Singh v. Kunwar Brijraj Singh, AIR 1935 PC 132

[19] Saudamini Works v. State of Orissa, ILR (1959) Cut 365

[20] Sir Hari Singh Gour, supra note 9, p 161

[21] Allen, Supra note 16, p 136

[22] Gour, Supra note 9, p 163

[23] Allen, supra note 16, p 137

[24] Bodenheimer, Edgar, “Jurisprudence: The Philosophy and the Method of Law”, First Indian Reprint (1996), Harvard University Press, U.S.A., p 374

[25] Fitzrgerald, supra note 4, p 199

[26] ILR 42 Cal. 455, p 475

[27] Balusamy Reddiar v. Balkrishna Reddiar, AIR 1957 Mad 97

[28] Gherulal v. Mahadeodas, AIR 1959 SC 781

[29] The Hindu Marriage Act, s. 4

[30] The Constitution of India, article 372

[31]Author of Process of Tribal Unification and Integration

[32] Indian Young Lawyers Association v. The state of Kerala, (2019) 11 SCC 1

[33] Shayara Bano v. Union of India, (2017) 9 SCC 1

[34] Mst. Kripal Singh v. Bachhan Singh, AIR 1958 SC 199

[35] Mahant Bhagwan v. Girija Nnadan, AIR 1972 SC 814

[36] Saraswathi Ammal v. Jagadammbal, AIR 1953 SC 201

[37] Singh, Salam Pramodkant, Faculty of Law, Gauhati University, “A Critical Analysis of Customary Rites and Ceremonies of Meiteis in the Light of the Hindu Marriage Act, 1955”, (2006), p 70