LEGAL METHODS
PROJECT TOPIC
CUSTOM AS A SOURCE OF LAW IN INDIA
Submitted by Submitted to
Mukesh choudhary Mr. Azim Pathan
B.A LL.B (hons.) Faculty (legal method)
Sem. ~ 1st Hidayatullah National Law University
Roll no. 73 Raipur
Date ~ 31st august 2012
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CUSTOM AS A SOURCE OF LAW
LEGAL METHODS
DECLARATION
I, Mukesh Choudhary, hereby declare that, the project work entitled, “Custom as a
source of Law in India” submitted to H.N.L.U., Raipur is record of an original
work done by me under the able guidance of Mr. Azim Pathan, Faculty Member,
H.N.L.U., Raipur.
Mukesh Choudhary
B.A. L.Lb.(Hons.)
Sem. - 1st
Sec. - B (Eco.)
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CUSTOM AS A SOURCE OF LAW
LEGAL METHODS
ACKNOWLEDGEMENTS
Thanks to the Almighty who gave me the strength to accomplish the project with
sheer hard work and honesty. This research venture has been made possible due to
the generous co-operation of various persons. To list them all is not practicable,
even to repay them in words is beyond the domain of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Faculty-in-
charge Mr. Azim Pathan, for his kind gesture in allotting me such a wonderful
and elucidating research topic.
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CUSTOM AS A SOURCE OF LAW
LEGAL METHODS
OBJECTIVES
The objective of my study would be to study the customs and their presence in
present laws, need of customs in society, importance of custom and also the cases
decided on custom laws.
RESEARCH METHODOLOGY
This Doctrinal Research is descriptive and analytical in nature. Accumulation of
the information on the topic include wide use of secondary sources like books, e-
articles etc. The matter from these sources have been compiled and analysed to
understand the concept from the grass root level. The structure of the project, as
instructed by the Faculty of Legal Methods has been adhered to and the same has
been helpful in giving the project a fine finish off.
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CUSTOM AS A SOURCE OF LAW
LEGAL METHODS
LIST OF ABBREVIATION
V. ~ Verses
AIR ~ All India report
M.H.C.R ~ Madras High Court Reports
B.H.C.R ~ Bombay High Court reports
BOM.L.R~ Bombay Law Reporter
Mad ~ Madras
P.R ~ Public relation
C.J~ chief justice
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CUSTOM AS A SOURCE OF LAW
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TABLE OF CASES
Gopalayyan v. Raghupatiayyan (1973) 7 M.H.C.R. 250
Balevant Rao v. Baji Rao.'47 I.A. 2I3 (I920)
Hirbai v. Gorbai (1875) 12 B.H.C.R. 294
Jan Mahomed Abdulla Datu vs Datu Jaffar (1913) 15 BOMLR 1044
Mukkattumbrath Ayisumma vs Vayyaprath Pazhae Bangalayil AIR 1953 Mad 425
Haridas Lalji vs Narotam Raghavji (1912) 14 BOMLR 237
Goods of Mulbai (1866) 2 B.H.C.R. 276
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CUSTOM AS A SOURCE OF LAW
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TABLE OF CONTENTS
• Declaration …………………………………………………………….1
• Acknowledgments……………………………………………………...3
• Objective, Research methodology………………………………….....4
• List of abbreviation……………………………………………………5
• Table of cases ………………………………………………………….6
• Introduction …………………………………………………………...8
• Ancient laws…………………………………………………………....10
• Requisites of a Valid Custom…………………………………………11
• Different custom laws in India……………………………………….12
• Customary Law—Backward or Relevant Justice Systems?..............14
• Cases related on customs..…………………………………………….15
• Conclusion……………………………………………………………..16
• Bibliography……………………………………………………………17
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LEGAL METHODS
INTRODUCTION
Let us have a clear understanding of the term law. It is generally associated in people’s minds
with a command or commands of some definite humane authority, the disobedience to which
will be followed by some penalty. Law is a body of rules of humane conduct, either prescribed
by long established usages and customs or laid down by a paramount political power. In
tracing the gradual development of law one thus see how custom has been the very corner
stone of the legal superstructure. Until a custom is recognized by a judicial court it cannot
become a positive law.1 It is not merely that law is very recent origin but that in most cases it
has been based upon custom and usage.2
Customs are oldest source of law. It is the outcome of habits. When a particular habit is
followed for a long time by the people regularly and habitually, the custom comes into being.
When written laws were more conspicuous by their absence in the primitive society, it was
customary laws that regulated human conduct in the primitive society. It is said that kings have
no power to create custom and perhaps less to destroy it. Customs largely influence the legal
system of a state and the state gets rid of the bad customs like Sati, Polygamy, and Dowry etc.
only by means of legal impositions.
Customs or unwritten laws existed and regulated the life conduct of humane societies long
before any regular political or civil government came into existence 3
The legal system of a country at a given time is not the creation of one man or of one day but is
the cumulative fruit of the endeavor, experience, thoughtful planning and patient labour of a
large number of people through generations.
Origin and growth of custom
It is impossible to ascertain the precise beginning or to discover the rudimentary growth of an
ancient and long established custom. It is of such high antiquity that neither humane memory
nor historical research can retrace it. But though we are unable to trace the origin of accustom
which is enshrouded in the mist of ages, yet we can ascertain the process by which a certain
rule of conduct is gradually established into a custom.
Nature of custom
Customs differ from law in its flexible and plastic nature. This is the inevitable consequences
of their respective origin. Law rather, positive law, originates from the will or command of
sovereign power, whereas customs has no direct author, it grows and fashion itself as the
1
Holland juris.p.37
2
Prof. Newman, ‘law is everywhere built upon custom’ p.166
3
Austin’s juris. Vol.ii p.221
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LEGAL METHODS
exigencies of a community arise and need. A custom may be change or modify it or may be
abandoned by a community or a class without the intervention of any authority whatever.
Need of customs
In the past, due to the vast size of the country, various kinds of customs prevailed. It embodies
a rule of conduct approved and accepted by the community for generations. Further, due to
lack of effective communication, there were several contradictions among the practices and the
judgment delivered. Thus, the country went on the way to being divided. Instead of becoming
the law of the land (lex-loci), thus we preferred our customs to maintain peace and justice in
society. Also due to various religions in country we need to prefer customs as it is easy for
people to understand and use, but it must be reasonable and peaceable for society.
ALL authorities are agreed as to the great importance of custom and usage in modifying, and in
some cases in wholly superseding, the established rules of Hindu and Mohammedan Law. The
existence and importance of the peculiar customs and usages to be found in all parts of India
have been emphasized, over and over again, both in Acts of the Legislature and in judicial
decisions. The British Raj has, indeed, always shown the tenderest solicitude not to interfere
with, or to fail in giving due recognition to, such customs and usages as have become part and
parcel of the rules of the communities where they prevail. This attitude on the part of the
Legislature and the Courts of Justice may best be indicated by one or two examples. Thus, in a
Bombay Regulation of 1827 it was laid down that "the law to be observed in the trial of suits
shall be . . . Acts of Parliament, and Regulations of Government applicable to the case. In the
absence of such Acts and Regulations, the usage of the country in which the suit arose. If none
such appears, the law of the defendant, and, in the absence of specific law and usage, justice,
equity, and good conscience alone." Again, in the Punjab Laws Act of 1872, as regards a great
variety of topics, it is enacted that the first rule of decision shall be “any custom applicable to
the parties concerned."
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LEGAL METHODS
ANCIENT LAWS
India has a golden history of over 5000 years. Therefore a comprehensive study of Indian legal
history comprises of the historical process of development of legal institutions in Hindus and
Muslim periods.
Pre-Mughal Era
The various sources of law relied upon by the kings at that time were shrutis, smritis, puranas,
dharmasutras, dharmashastras, etc. The Arthashastra and Manusmriti were influential
treatises in India, texts that were considered authoritative legal guidance.
Ancient India represented a distinct tradition of law, and had a historically independent school
of legal theory and practice. The political structure in the Vedic Period consisted of kingdoms,
each tribe forming a separate kingdom. The basic unit of political organization was
the kula (family). A number of kulas formed a grama(village), Gramani being the head. A
group of gramas formed a vis (clan) and a number of vis formed the jana(tribe). The leader
was Rajan (the Vedic King). The king (raja) was the supreme head of the legislative, executive
and judiciary branches. The members of the council of minister could give advice to the king,
but final decisions were left to the king. The ministers and other officials were directly
appointed by the king. The sabha and thesamithi were responsible for the administration of
justice at the village level.
Mughal Era
The ideal of justice under Islam was one of the highest in the Middle ages. The administration
of justice was regarded by the Muslim kings as a religious duty. Sources of Islamic Law are
divided into Primary and Secondary Sources. Quran is the first and the most important source
of Islamic law. It is believed to be the direct words of God as revealed to Muhammad through
angel Gabriel in Mecca and Medina. Muslim jurists agree that the Quran in its entirety is not a
legal code
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LEGAL METHODS
REQUISITES OF A VALID CUSTOM
It is not that each and every custom can be legally enforced. A custom to be legally
recognizable and enforceable must fulfill several requisites, viz., it must be ancient, certain,
continuous and invariable, reasonable, and, being in derogation of the general rules of law,
must be construed strictly. 4
On a collocation of very numerous cases, English and Indian, it would appear that in order to
give effect to a custom in India it must, in strict law, fulfil the following conditions, and
possess the following characteristics. It must be (I) ancient, (2) definite, (3) continuous, (4)
notorious, (5) reasonable. It must not be (I) opposed to express enactments of the Legislature,
nor (2) opposed to (a) morality, (b) public policy, (c) justice, equity or good conscience.
Further, it must be (I) established by clear and unambiguous proof, (2) construed strictly.
A neat formulation of a valid custom is contained in the Hindu Marriage Act and the Hindu
Succession Act wherein it is said that the expression 'custom' and 'usage' signify any rule
which, having been continuously and uniformly observed for a long time 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. One of the attributes of an
enforceable custom is that it should be certain and not vague; that the course of conduct upon
which the custom rests must not be left in doubt but be proved with certainty.
The reason behind this rule is simple to understand. If one is left in doubt as to what the custom
is, he cannot apply it. If a custom is vague, the courts cannot be definite about its content and
so cannot give effect to it.
4
Huro Prasad vs. Sheo dyal, 26 WR. 55(1876)
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DIFFERENT CUSTOM LAWS IN INDIA
As stated by Article 44 of the Indian Constitution, India is a secular state that strives towards
legal uniformity. Many argue that the commitment of the Indian government towards this
gradual uniformity of the legal system threatens the minority religious groups that utilize the
plurality of the law to maintain traditions and implement their religious laws. While modern
Indian Law claims to make strides towards secularism, it is undeniable that its foundations rise
from the Hindu legal tradition and continues to maintain religious legal acceptance by
recognizing the personal and family laws of the Islamic, Christian, Jewish, and Hindu religions.
Hindu law
The modern Hindu legal system is applied to strictly personal law, including issues of marriage,
inheritance and adoption, whereas India's secular legal system is applied to issues of criminal law
and civil law.
Sources of Classical Hindu law arose from the religious texts of the Dharmaśāstra, as well
as sadachar or customs, and commentaries or digests that translated and interpreted the laws.
Since British colonialism, India has codified several aspects of the Hindu tradition into the
Indian legal system as well as adopted common and civil legal procedures
India is based on the British common legal system, thus the courts rely heavily on stare decisis,
or precedent, when deciding cases. Any case decision made by a higher court is a source of law
to all of the lower courts, in the prospect that the laws will be applied in a similar manner. The
Hindu family courts are expected to follow laws handed down from previous cases.
Modern Hindu law relies on the interpretation of judges and their ability to decipher mitigating
factors within each legal situation. This is reflective of the ancient Hindu legal tradition of
working out problems on a case specific basis in finding justice in each specific instance.
Some of the Hindu laws in India:
Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship
Act (1956), and Hindu Adoptions and Maintenance Act (1956).5
Muslim law
Muslims in India are governed by "The Muslim Personal Law (Shariat) Application Act,
1937."[82] It directs the application of Muslim Personal Law to Muslims in marriage, mahr
(dower), divorce, maintenance, gifts, waqf, wills and inheritance.[83] The courts generally apply
the Hanafi Sunni law for Sunnis, Shia Muslims are independent of Sunni law for those areas
where Shia law differs substantially from Sunni practice.
5
Rina Williams. Postcolonial Politics and Personal Laws. Oxford University Press: New Delhi. 2006. Pg. 106
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The Indian constitution provides equal rights to all citizens irrespective of their religion. Article
44 of the constitution recommends a Uniform civil code. However, the attempts by successive
political leadership in the country to integrate Indian society under common civil code is strongly
resisted and is viewed by Indian Muslims as an attempt to dilute the cultural identity of the
minority groups of the country. The All India Muslim Personal Law Board was established for
the protection and continued applicability of “Muslim Personal Law” i.e. Shariat Application Act
in India.
Muslims believe the Quran to be the direct words of Allah, as revealed to and transmitted by the
Prophet Muhammad. All sources of Islamic law must be in essential agreement with the Quran,
the most fundamental source of Islamic knowledge. When the Quran itself does not speak
directly or in detail about a certain subject, Muslims only then turn to alternative sources of
Islamic law.
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LEGAL METHODS
CUSTOMARY LAW—BACKWARD OR RELEVANT JUSTICE
SYSTEMS?
Many indigenous cultures having developed their own societal traditions and norms naturally
have ways to deal with crimes. Various anthropologists and others have noted some interesting
differences between some traditional systems of justice and modern law. Indigenous law
consists of a series of unwritten oral principles that are abided by and socially accepted by a
specific community. Although these norms may vary from one community to another, they are
all based on the idea of recommending appropriate behavior rather than on prohibition.
Customary indigenous law aims to restore the harmony and balance in a community; it is
essentially collective in nature, whereas the Western judicial system is based on individualism.
Customary law is based on the principle that the wrongdoer must compensate his or her victim
for the harm that has been done so that he or she can be reinserted into the community, whereas
the Western system seeks punishment
Customs have been handed to us from the remotest ages and not allowed to pass into oblivion
is due to the conservatives nature of man and to the reverential regard with which each member
of a community or a tribe looks upon them. To violate a custom is to him nothing short of a
sacrilege.
The Punjab Court has recently emphasized the fact that this personal law, by which is generally
meant the law of the particular school or sect to which the party belongs, must, in that province
at least, take a secondary place. Thus, in case IIo, P.R. I906, the Court is reported to have
decided that "among parties who generally follow the principles of customary law the Court is
justi- fied in falling back as a last resort on their personal law (i.e. Hindu or Mohammedan
Law) for the decision of the point at issue, if no definite rule of the former law (i.e. custom)
applicable to the case before it can be found."
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CASE JUDGEMENTS BASED ON CUSTOMS
In Gopalayyan v. Raghupati Ayyan 3 M.H.C.R. 217 a member of a Hindu family brought a suit
for his share of the family properties, all the other members being defendants and to ascertain
what his share was it became necessary to decide whether the first defendant was adopted into
that family. The decision that he was adopted was held in a subsequent suit not to be binding
on the plaintiff therein, another member of the family, claiming his share of the property.
Balevant Rao v. Baji Rao.'47 I.A. 2I3 (I920) The head-note to that case runs as follows: " The
particular doctrines of Hindu Law recognized in a province of India become part of the status
of every family governed by them, and continue to govern the family upon migration to a
province where a different doctrine prevails, unless there is proved a renunciation of the
original law for that of the place migrated to. Decisions given by the Courts after the migration
declaring what was the correct doctrine in the place migrated from, affect the migrated
members, but not customs there incorporated into the law after the migration." This case shows
how, in India, a Hindu or Mohammedan carries his personal law with him wherever he goes,
and also that it can be renounced.
Hirbai v. Gorbai (1875) 12 B.H.C.R. 294 was decided by Sir Charles Sargent in 1875. It was here
held that a mother was entitled, by the custom of the Khojas, to the management of the estate,
and therefore to letters of administration in preference to a wife or sister. Here for the first
time since 1847 we find in the opening passages of Sargent J.'s judgment an accurate
statement of what really was decided in The Khojas and Memons cases by Sir Erskine Perry.
The learned Judge goes on (p. 300)
In 1866 In the Goods of Mulbai (1866) 2 B.H.C.R. 276 was decided. It was held by Couch C. J.
that by the custom of Khojas, when a widow dies intestate and without issue, property
acquired by her from her deceased husband does not descend to her blood relations but to the
relations of her deceased husband. Here we come in limine upon another instance of that
confusion of thought or loose use of language which hangs like a pall over this branch of the
law. The actual point decided was that there was a custom proved amongst the Khojas (by the
evidence of three witnesses only as far as I can see) which entitled the husband's relatives to
succeed to his widow's estate, if she died intestate, in preference to her own kin.
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CONCLUSION
The foregoing survey would show that, after the advent of the British in India, custom came to
be given a place of honour in the administration of justice. A large volume of case-law arose in
India having a bearing on custom. Custom came to play a very important part as a source of law;
it took a place second only to the statutory law; custom was given preference over the religious
laws of the parties. This was a reasonable and just approach for, in practice, the law of the
shastra and the shara was not observed by the people in all its pristine purity and that all kinds
of customs had ingrained themselves in the scheme of things. It was only just and equitable that
the customs which people had been observing in practice be enforced rather than the theoretical
law contained in the books; it would have been harsh with the people to force them to forego
their customs in favour of the orthodox system of law.
All kinds of customs - family, local, tribal - came to be applied. Formally, the tests applied to
adjudge the legal enforceability of a custom were the same as those laid down in England, but in
their practical application, they were not rigidly enforced, and the courts showed a great amount
of flexibility of approach and toleration towards customs. Thus about the qualification that a
Custom to be applicable should be antiquated, we have already seen the liberality of approach
which the courts adopted towards this maxim in India, and, in a large number of cases, customs
Were enforced when there was evidence of their operation over a period of twenty years or so.
This is not so in England where a custom must be in existence since 1189 A.D. Similarly, the
courts, earlier in the day, declared that they would not insist upon technical methods of proof,
and many customs were held proved even though the quantity and quality of evidence in support
of them left something to desire While generally that was the attitude, there are a few cases on record
where the courts showed some intolerance towards some customs without any rational reason. One such
case is Gopalayyan v. Raghupatiayyan (1973) 7 M.H.C.R. 250. The Civil Judge found that among
the Brahmins of the locality there prevailed a custom, 'uniform and uninterrupted', 'for the last 134 years',
of adoption of sister's son.
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BIBLIOGRAPHY
Sripati Roy, custom and customary laws in British india,1986
Ancient law
Austin’s juris vol. 1
Austin’s juris vol. 2
Lindesay J. Robertson , The Judicial Recognition of Custom in India, Vol. 4, 1922
WEBLIOGRAPHY
http://indiankanoon.org
http://www.jstor.org
http://www.aimplboard.org
http://www.pucl.org
http://www.legalserviceindia.com
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