UNIT 1- SOCIAL BASIS OF LAW
TOPIC: CUSTOMARY LAW- SOME CASE STUDIES
Custom is recognized as a major source of law under the Indian legal system. Article
13(1) of India’s Constitution provides that when the Constitution entered into force, all
previous laws that were inconsistent with the Constitution were considered void.
The Constitution defines “law” to include “ custom or usage having in the territory of
India the force of law.” The Courts of India have recognized custom as law only if the
custom is:
(1) “ancient or immemorial” in origin,
(2) “reasonable in nature and continuous in use,” and
(3) “certain.”
The Courts have interpreted “ancient or immemorial” to mean that for a custom to be
binding it “must derive its force from the fact that by long usage it has obtained the force
of law.” A custom also “derives its validity from being reasonable at inception and
present exercise.” Lastly, a “certain” custom is one that is “certain in its extent and mode
of operation” and invariable.
India’s Constitution also provides protection of tribal indigenous communities and their
customs through Articles 244, 244-A, 371-A, and the Fifth and Sixth Schedules. The
Fifth and Sixth Schedules provide for a system of “Scheduled Areas” or tribal regions,
which are designed to protect the interests of listed indigenous communities or
“Scheduled Tribes.”
The Fifth Schedule provides for the administration of scheduled areas and scheduled
tribes in the states outside the northeastern areas of India.
The Sixth Schedule contains provisions for the administration of tribal areas in the
northeastern states of India and grants tribes considerable administrative autonomy,
endowing each regional administrative unit with its own regional council, and each
district level unit with local district councils. Autonomous councils are invested with both
executive and legislative powers, subject to the approval of the provincial governor, to
“make laws with respect to a variety of subjects,” and even exercise “judicial authority
through traditional legal systems embedded with certain features of federal law.”
Under the Fifth Schedule, on the other hand, tribal affairs are administered by the
provincial government.
It was only with the enactment of the Panchayat (Extension to Scheduled Areas) Act,
1996, that tribal communities were granted a limited level of local governance at the
village level and that certain “political, administrative and fiscal powers” were devolved
to local village assemblies or panchayat.
In addition, other laws are in force to protect the customary rights of tribal communities.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006 “provides for the recognition, vesting and securing of individual and
community tenure rights to all forest dwelling Scheduled Tribes and Traditional Forest
Dwellers on all forest lands.”
Role Played by Custom in Hindu Personal Status Law
Custom plays a significant part in Hindu law and is accepted as part of the Indian legal
system. A variety of Hindu tribal customs concerning personal status and inheritance are
also recognized despite the codification efforts of the central government.
Section 2(2) of the Hindu Marriage Act and the Hindu Succession Act have left the door
open for the recognition of tribal customary laws and practices of “Scheduled Tribes.”
Customary Hindu practices in marriage and divorce that are outside the traditional norm
are also recognized under Indian law.
Traditional Hindu law recognizes eight forms of marriage, of which three—Brahma,
Asura, and Gandharba—are the most prevalent. However, a marriage in a form “which is
out of practice or obsolete is not necessarily prohibited by Hindu law.”
According to advocate D. H. Chaudari, “in a vast country like India, with so many castes
living in so many different places, multifarious forms of marriage allowed by custom
have come into existence. These customary forms of marriage may be perfectly valid
even though they do not strictly come within the definitions of any of the eight forms.”
According to Hindu law, ceremonies “of some sort are absolutely essential.” For
example, “[c]ourts have attached great importance to the performance of Saptapadi or the
ceremony of seven steps which is considered to be the most important of ceremonies.”
However, it should be noted that the performance of ceremonies other than those referred
to above are recognized by the Indian Courts where the ceremonies are allowed by the
custom of the community or caste to which the parties belong.
Divorce is not recognized by general Hindu law. Traditionally marriage, from the Hindu
legal standpoint, “creates an indissoluble tie between the husband and the wife. Neither
party, therefore, to a marriage can divorce the other unless divorce is allowed by
custom.”
The Hindu Marriage Act modified this position, however, creating nine grounds for both
husband and wife to claim divorce, and some additional grounds available to the wife
alone. According to section 29 of the Hindu Marriage Act, 1955, dissolution of a Hindu
marriage can also be obtained through a valid custom.
