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Custom as source of Hindu Law

August 16, 2024

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This article was written by J.Suparna Rao and further updated by Shafaq Gupta. It deals with the custom as a source of Hindu law, which is one of the most ancient and cardinal sources. Customs were considered to be ‘dharma’ itself and were observed strictly. The article further explains the necessary requisites of a valid custom in detail and elaborates on the various forms, the customs and usages, the burden of proving the custom, etc.

Introduction

Laws are basically the rules of conduct or the moral guidelines prescribed by the state to regulate the functioning of the country. The law can also be referred to as the ‘Dharma’ itself, which means it is the duty of a person to follow it in a routine manner. Hindu law is one of the oldest systems of law and is considered to be around 6000 years old. Society keeps changing according to time and so does the law. The Hindu law is considered divine and was codified by the Dharmashastra writers. It governs many social aspects such as marriage, divorce, adoption, minority and guardianship, inheritance, and other family matters. There is a need to study the sources of Hindu law to become aware of its phases of development and how it conforms itself to the changing needs of modern society. Customs were the most important and widely recognised as a source of Hindu law and therefore, it is important to study them. They prescribe various religious and moral duties that guide an individual throughout their lives. Through long established practices, they got recognised as law.

Sources of Hindu law

There are diverse sources of Hindu law that provide the very foundation of it. The sources have evolved with time according to changing needs and are hence divided into two categories, namely, ancient sources and modern sources. They are further classified into various fields. The ancient sources include Shrutis or Vedas, Smritis, Commentaries and Digests, Customs and Usages. The modern sources include judicial decisions or precedents, Legislation and the basic principles of justice, Equity and good conscience.

Ancient sources

Shruti

The word Shruti literally means ‘what was heard’. Hindu law is considered to be a divine revelation by God himself. Some Hindu sages were believed to have direct communication with God and wrote it in Shrutis, also known as Vedas. The Vedas are the source of all knowledge and the entire Hindu law emanates from them. They depict the lives of our early ancestors and guide an individual in performing his religious and moral duties. There are four types of Vedas:

The Rig Veda (the oldest one and contains various religious songs and hymns)
The Yajur Veda (which contains various rituals and mantras)
The Sama Veda (which contains musical notes and prayers)
The Atharva Veda (which contains musical notes and prayers along with some magical spells).

Smriti

The word Smriti literally means ‘what has been remembered’. According to the changing needs of society, there was a need to expound upon the principles already laid down in the Vedas. The sages and the scholars wrote detailed explanations about the moral and social conduct of people. They made it easy for people to understand the language of the Vedas. This was known as the golden age of Hinduism. The Smritis are further divided into two types:

Dharmasutras: These are the early Smritis, which were written between 800 and 200 BC. Sutras were small texts that were easy to memorise. They elaborated on the different local customs and rituals followed by the people and preached various Vedic practices that needed to be observed in certain relationships. The intellectual thinkers of the Dharmasutras were Gautama, Budhayana, Harita, Vasistha, etc. A few examples of the texts written by them are the Grihya Sutra ( about the domestic household ) and the Dharma Sutra (the various disciplines that need to be followed in life).
Dharmashastras: These are the later Smritis, which developed into Dharmashastras. They were written in a more systematic manner as compared to Dharmasutras and laid down the principles of moral conduct. Most of the Dharmashastras were divided into three parts:
- Achara ( the rules of religious observance)
- Vyavahara (the civil law)
- Prayaschitta. (the acts of penance and reparation of guilt)

The various examples of smritis written by Dharmashastra writers are Manusmriti, Yajnavalkya Smriti, Narada Smriti, etc.

Commentaries and digests

Commentaries and digests form the secondary source of Hindu law as they provide explanations and different interpretations of the already written historical texts, customs, and codified Hindu laws. The Smritis were not always clear and did not provide solutions to every situation. Hence, there was a need to develop digests and commentaries. Digests are collections of legal precepts and guidelines derived from ancient writings, traditions, and judicial precedents. They offer a methodical and systematic summary of Hindu laws and were often written by legal scholars. On the other hand, the commentaries elucidated the various legal tenets and procedures of Hindu law by way of thorough examinations and interpretations. There was a major role for digests and commentaries in the evolution of the two schools of Hindu law – the Dayabhaga and the Mitakshara schools.

Modern sources

Precedents

In ancient times, there was no systematic process for recording the judicial decisions delivered by the courts. With the advent of British rule in India, the precedents became an important source of Hindu law. Judicial precedents are the final judgements delivered by a court of law that embody various rules and principles related to Hindu law. The judicial decisions of a higher court are binding on the lower courts. Due to this, it is not always necessary to look into the original texts and these leading cases are enough to prove any point of contention. Moreover, similar cases are dealt with similarly, which reduces the burden of cases and provides speedy justice. For example, in the case of Mohd. Ahmed Khan vs. Shah Bano Begum (1985), the Supreme Court stated that Section 125 of the Criminal Procedure Code, 1973, is applicable to all citizens. Their religion does not matter. Even Muslims can claim maintenance under it.

Legislation

Legislation is a modern source of Hindu law, which refers to the codified laws made by the state legislature and passed by the Parliament of India. They provide a comprehensive framework of the legal and social principles to be followed by Hindus, keeping in mind the contemporary needs of society. The various codified Hindu laws are as follows:

Justice, equity and a good conscience

The concepts of justice, equity and good conscience are founded on the idea of natural justice, which is to be followed by every court of law. They are frequently used by judges to handle situations when statutes, ancient writings, or customs do not specifically address the matter at hand. The courts are empowered to exercise their discretion to interpret and implement the laws based on equity and justice so as to provide fair justice. This fills the potential gaps that may exist in the interpretation of various laws.

Customs as a source of Hindu law

In common parlance, custom can be defined as an act or behaviour that is repetitive, traditionally accepted or a habitual practice that has been followed uniformly for a long time. They are the ‘Rules of Conduct’ that differ from area to area. They are affected by various factors such as caste, geography, climate, and religious beliefs, among other things. For instance, the traditions of a North Indian rural village might not be the same as those of a South Indian rural village, as Hindu law is derived from a number of shared norms, including those pertaining to marriage, succession, adoption, and religious rituals.

Customs are long-established practices that have been acknowledged and followed by a large number of people. They reflect the various social, religious, and moral principles followed by Hindus and are considered valid in the absence of any statutory law. Customs were considered to be the supreme of all Dharmas. These customary rules were modified according to the changing needs of society and thus evolved with time. Neither the Smritikaras (those who wrote Smritis) nor the Digest writers and commentators ever claimed to incorporate custom. It was generally said that the king should decide disputes in accordance with custom. The four legs of law were Dharma, Vyavahara, Charitra (custom) and Rajya-Shasaria (king-made law) and the latter prevailed over the preceding. The king-made law was supreme among all. However, the custom was supreme over the first two. This shows the importance of customs in earlier times.

In modern times, the customs are recognized as a part of the law under Article 13 of the Constitution of India,1950, and form a major source of Hindu law. Any law that is made in contradiction to these customs shall be void. The Historical School of Law recognises and supports custom as a source of law. The lives of people were governed by primitive cultures or traditions that evolved gradually in response to various conditions and circumstances. Customs were considered to be the most practical way to perform a given task in the absence of any other law in existence.

People used to follow customs voluntarily and were sanctioned by the will of the whole community. They even tell us about the expected behaviour of a member of a particular community in certain circumstances and are based on the examples established by other members of that group or by previous generations. For instance, the law of contracts has its origins in the barter system of trade, in which one good was exchanged for another, the idea of property law originated with the ownership and possession of land, and the concept of succession originated when the ‘Karta’ of a Hindu undivided family died and the household had to choose another person as their Karta.

According to Manusmriti, there are four main stages in which custom originated as a source of law in ancient India:

Revelation, or the utterances and thoughts of inspired seers (Rishi-Munis);
The utterances of revered sages, handed down by words of mouth from generation to generation (shruti);
The approved and immemorial usages of the people; and
That which satisfies a sense of equity and good conscience and is acceptable to reason.

In Sanskrit, there are three words that need to be understood. They are:

Achara: Rules related to religious observances
Vyavahara: The Rules of Civil Law
Sadachara: The usages to be followed by virtuous men.

Sadachara is another word for customs. They basically tell us about the practices and usages that were followed by the four chief castes ( Brahmins, Kshatriya, Vaishya and Shudra) and the other mixed castes in the country. These practices were passed on from generation to generation and through their long-established practices, they were recognised by law and carried a binding force.

Definitions by various jurists

Customs have been defined by various jurists in accordance with their beliefs, philosophies, viewpoints, and opinions. Some of them are mentioned below:

Salmond: Custom is the embodiment of those principles that have commended themselves to the national conscience as principles of justice and public utility.
Austin: Custom is a rule of conduct that the governed observe spontaneously and not in pursuance of a law set by a political superior.
Allen: Custom as a legal and social phenomenon grows up by forces inherent in society, forces partly of reason and necessity and partly of suggestion and limitation.
Holland: Customs are a generally observed course of conduct.
Keeton: Customary law may be defined as those rules of human action established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as sources of law because they are generally followed by the political society as a whole or by some part of it.
Halsbury: A custom is a particular rule that has existed either actually or presumptively from time immemorial and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm.
Carter: The simplest definition of custom is that it is the uniformity of conduct of all persons under similar circumstances.

Section 3(a) of the Hindu Marriage Act, 1956

Section 3(a) of the Hindu Marriage Act, 1956, defines customs as per the codified law. The various essentials mentioned in the section are:

Continuity
Uniform observance
Practised for a long time
Certainty
Reasonability
Not opposed to public policy
It was not discontinued by the family in which it was observed.

By following all these requisites, a custom obtains the force of law in any local area, tribe, community, or family in which it is followed.

In the case of Deivanai Achi vs. Chidambaram Chettiar (1953), the Madras High Court stated that for a custom to be legally sanctioned by law, it must be practised continuously by the people. They must not be vague or ambiguous, and they must not be opposed to a public policy.

In the case of Laxmibai vs. Bhagwanthbuva (2013), it was declared by the Supreme Court of India that for a custom to become legally enforceable, it must be continuously practised by the majority of people.

Origin and nature

The word ‘custom’ has been derived from the French word ‘coustume’ which basically means a practice that has been carried forward for a long time. In Hindi, we can call it ‘reeti’ , ‘riwaj’, ‘rasam’, etc. Initially, when human beings started living in groups, they all used to agree to a common conduct or behaviour for maintaining harmony and peace among themselves. With time, as they became more experienced, they learned a particular mode of behaviour that was conducive to their collective living, through which consistency followed. When these practices were followed uniformly and consistently over a period of time, they came to be known as usages. It regulated their daily lives and when seen in respect of a particular class of community, it came to be known as custom. In modern law, the existence of custom needs to be proved and the burden of proof is on the person who asserts it and not on the person who denies it. It must be ancient, invariable, continuous, certain and established by unambiguous evidence.

Types of customs under Hindu Law

The Smritikaras (those who wrote Smritis) defined four types of customs, which are: local customs, general customs, family customs, and class or caste customs.

Local customs

These are the customs or practices that are binding on the people belonging to the Hindu community of a particular geographical area or a particular locality. They are different from class or family customs. In India, the local customs must not be contrary to any of the existing laws. They must be sustainable and reasonable to a greater extent. In the case of Subhani vs. Nawab (1940), the Bombay High Court stated that the customs followed in a particular area derive the force of law from the fact that they have been used since ancient times and were maintained consistently.

General customs

These are the customs or practices that prevail in the country as a whole. They are followed by the general population willfully and encompass its circle throughout the boundaries of the country. In earlier times, the general customs were considered the same as the common law of the land. However, now only statutory laws and precedents are considered to be the law of the land. Some of the examples of general customs followed in India are: ‘Namaste’, which is used to greet people, ‘Tilak’, which is a ritual remark and is a sign of blessings or auspiciousness, keeping ‘vrat or fasts’ to express their gratitude towards God, worshipping cows’ as a motherly figure and also following the practise of ‘Atithi Devo Bhava‘, which means that the guests must be treated as equivalent to God and should be treated so.

Family customs

Family customs can be defined as family traditions or family cultures that were followed by them for a long time and were inherited from their own ancestors. It can be said to be the environment in which a person is born and brought up by their parents and ancestors. These customs are only binding on the family that follows them consistently and, therefore, are easier to abandon than local or general customs. The major examples of family custom are impartible estate and succession by the rule of primogeniture, which means that though the property is indivisible by nature, it passes on to the eldest son in the family as a part of custom.

Class or caste customs

Class or caste customs cover the widest area of Hindu law as compared to other types of customs. These are followed by a particular caste, sector or class of people, such as traders, agriculturalists, businessmen, etc. Every caste or class has different traditions that have been followed for a long time and are observed uniformly with the consensus of all. A few examples of it are the custom among the Jats of Punjab that one can marry one’s brother’s widow, the custos that permit marriage with a sister’s daughter in South India, or the customs permitting adoption of a daughter’s son or sister’s son in a few castes.

Essentials of a valid custom

Customs can be anything that explains the behavioural pattern of a certain group of people. On the basis of it, the people can be classified into different groups. It is one of the earliest sources of law, which can alternatively be called traditions, cultural ideology or cultural philosophy.

There are various essentials for a custom to be a valid custom and to have the force of law:

Ancient

The custom must be ancient. It should have been established much earlier and had existed for a long time uniformly. The antiquity of a custom is an essential and foremost element of a valid custom. Customs must belong to a very distant past. It must have been followed by people from time immemorial. Though Hindu law did not fix any particular period of time to judge the antiquity of the custom, English law fixed the year 1189 AD to test the antiquity of the custom.

It was stated by Blackstone that for a custom to be recognized as legal and binding on society, it must have been followed for so long that the memory of the man must not run contrary to it. A particular and certain time period for a custom to be recognized as a law is not defined anywhere. In some cases, the period of 40 years was considered ancient, while in others, the period of 100 years was considered self-sufficient for accepting a custom as valid. In the case of Musammat Subhani vs. Nawab (1940), it was held by the Privy Council that it is not necessary that the custom have been followed since time immemorial in every case. It depends on the facts and circumstances of the case. Only it must have been followed for a long time and the people must mutually consent to it. If it fulfills the above condition, it can be accepted as government rule.

In the case of Rajothi vs. Selliah (1966), the Madras High Court stated that in modern times, no custom can be created by the free will of people. The power to make rules and regulations is now presided over by the Legislature. In another case, Thakur Gokalchand vs. Parvin Kumari (1952), the Court laid down an essential principle related to customs. It stated that in English law, the custom must have been followed for such a long time that it does not run contrary to the memory of man. But it is not followed like this in India. In India, the customs must have been followed for a long time and there is no fixed duration for them to be valid.

Invariable and continuous

Customs should have been practised for a specific period of time and should still be in existence. They must be followed uninterruptedly and invariably without any breaks since their inception, without any modifications. Only then will they be able to gain the force of law. The customs can’t be repealed as they are not acts made by the legislature and can lose their validity only by way of abandonment. The abandonment of the custom may be intentional or accidental, but this is immaterial. There cannot be two customs that contradict each other. All the customs must be at consensus on a point on which they are based. For example, if A, along with the consensus of other people, establishes a custom that he has a right to frame windows through which he can look into another’s garden, then B cannot claim to have established a custom that those windows have to be opaque. Every custom must be followed continuously and in consonance.

Clear and unambiguous evidence

The custom must be clear and unambiguous. There should be clarity in giving evidence of a custom. The group of people who are following it must prove it through their actions, acts or general instances of the existence of such a custom. There must be no confusion regarding a custom and reasonable proofs must exist to prove it. No one can claim anything to be a part of a custom on their own.

Reasonable

The custom must be supported by valid reasons for its being followed. To consider it a valid custom, it is necessary that such a custom be derived from a series of reasons. It should not be based on assumptions, which are not acceptable. The reasonability of a custom is judged on the basis of the contemporary values of a society, which differ from time to time and place to place. Many times, a custom may be based upon the wisdom of the local mass of people rather than reason. However, there are certain practices that are considered unreasonable in almost all societies and thus, those shall not be introduced as customs.

In the case of Lutchmeeput Singh vs. Sadaulla Nushyo and Ors. (1882), a zamindar filed a suit in court to prevent the defendant from fishing in specific bhils (ponds) that were owned by the plaintiff (zamindar). The defendants argued that they had a right to fish under a custom that grants fishing rights to all the Zamindari residents. However, the Calcutta High Court declared the claimed custom to be irrational and unreasonable because the defendants could take away all fishing rights in the bhils and leave nothing for the plaintiff, who was the owner of them.

Not opposed to morality

The customs must be moral and follow the decent standards of a society. Just like reasonability, morality also varies from place to place. Therefore, it is left up to the wisdom of the courts to consider what is moral or immoral. In the famous case of Balusami Reddiar vs. Balkrishna Reddiar (1956), marriage with a daughter’s daughter was held illegal as being against morality. Although such a kind of marriage was in existence and was performed continuously in the Reddiar community of Tirunelveli district, in the case of Mathura Naikin vs. EsuNaikin (1880), the Bombay High Court declared the custom of adopting girls for immoral purposes, like dancing, as illegal because it was designed to perpetuate this profession.

Not opposed to public policy

Customs should not be against public policy, which means that they should aim at the well-being of the people. They should not be against the social rules, moral values or set of ethical standards that society follows. If a custom is opposed to public policy, it can be declared void by the court.

Not opposed to any law

Customs, to be valid and accepted in the eyes of the law, must not be in derogation from the laws of the country. They must not be opposed to dharmashastras. It must not be forbidden by any laws or enactments of the legislature. It is necessary that customs are in line with the statutory laws to be accepted as a valid custom.

Observance as a right

A custom must be observed as a right by the people with their own free will. It must not have been enforced through fear or threatening the individuals and should be followed in a peaceful manner. The customs must be observed as a right for a long time and must not have gaps in between.

Not by analogy

Customs cannot be formed by way of analogy. It basically means that we cannot infer one custom from the other. It must be proved by inductive reasoning, which involves using specific observations, evidence, or patterns to make a broad conclusion, rather than by deductive reasoning. The customs are a matter of fact and not just theory. For example, by drawing an analogy , customs cannot be equated with fundamental rights guaranteed by our Constitution.

Proof of a custom

A custom needs to be proved before the court to carry a binding value for the Hindus. It must fulfil all the valid essentials of a valid custom. A party who is claiming the existence of a custom before the court must prove it through general evidence. It must be consistently followed by the people of the community and such a proof of custom will make it valid and a binding law for society. The burden of proving the custom lies on the person who asserts its existence.

Riwaj-i-am is a public document that is prepared by government officers for recording the general or particular customs followed by a community or class of people. They can be referred to as evidence proving the custom. However, they are subject to rebuttal and must be used with caution.

Even books and manuals can be used to prove the existence of a custom. For example, Rattigan’s Digest on Customary Law of Punjab is a valid source used widely in Punjab and makes the court aware of the customs followed in Punjab. If a person fails to prove the custom, he will be governed as per the provisions of Hindu law.

According to Section 48 of the Indian Evidence Act, 1872, the opinions of the persons who are likely to be acquainted with the existence of a custom are considered relevant in proving it. For instance, in the case of Smt. Radha Krishna Kandolkar vs. Tukaram (1990), the question before the Bombay High Court was whether the right to draw water from a particular well in a village can be considered a custom if it has been practised continuously for the past 30 years. The Court answered in the negative because that particular right must have been recognised as custom by a particular community and their opinions in this regard are relevant.

Section 32(4) of the Indian Evidence Act, 1872 provides that a statement of opinion given by a person who cannot be called as a witness, such as a dead person, as to the existence of any custom is considered relevant if it fulfills two conditions. First, if the custom existed, then that person must have been aware of it. Secondly, the statement regarding such a custom was made by him before any dispute arose relating to it. For example, the question is whether a particular road is a public road or not. The opinion of the deceased village headman is relevant in this regard.

In the case of Mt. Kesarbai vs. Indarsingh (1944), the Privy Council stated that the previous judgement of the High Court as to the existence of a particular custom is a valid proof of custom as it was well reasoned and without any error in the eyes of law.

Burden of proof

The burden of proving the custom lies on the person who asserts its existence and not on the person who denies it. It is because the person asserting it wants the court to believe it, as he claims relief on the basis of the custom. He needs to establish his case to the satisfaction of the court. But the onus of proof does not remain constant. It refers to adducing evidence for a specific fact alleged either by the plaintiff or the defendant. Therefore, it is of a dynamic nature and keeps shifting during the trial of a case.

In the case of Harihar Prasad Singh vs. Balmiki Prasad Singh (1974), the Supreme Court held that the burden of proof lies upon a person who claims its existence and such a person has to prove that the custom is valid enough to be established contrary to laws. In cases where a person wants any custom to be discontinued, the burden lies on that person to prove there are reasonable grounds for the discontinuance of such customs.

Judicial notice of a custom

According to Section 56 of the Indian Evidence Act, 1872, a fact that has been judicially noticed by the Court need not be proved. When some customs are brought before the court repeatedly and have been judicially noticed, there is no need to prove their existence individually. They are accepted by the court without any proof and the burden of proof lies on no one. Such customs are held to be a part of general law.

In the case of Ass Kaur vs. Kartar Singh (2007), the honorable Supreme Court held that customs formed an important source of Hindu law. If the customs have been judicially noticed by the court through repetitive suits, they need not be proved in every single case. The statutory laws do not exclude the applicability of the customary laws if they are duly proved for once. The same was held in the case of Ujagar Singh vs. Mst. Jeo (1959).

In the case of Jadu Lal Sahu vs. Maharani Janki Koer (1912), it was stated by the Bombay High Court that customs that are generally known to everyone need not be proved. They are already established and are considered to be part of the law. However, certain details of it, like the rites and rituals associated with that particular custom, may be proved by giving evidence.

Customs and Usages under Codified Hindu Law

Many times, the words ‘custom’ and ‘usages’ are used interchangeably generally but they are somewhat different. When we keep practising a thing repeatedly, it forms usages and gradually they obtain the force of law through consistency and uniformity for them to be known as valid customs. The usage precedes a custom.

The codification of Hindu law abolished many unreasonable customs by way of enacting the Hindu Marriage Act (1955), the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956), etc. This made the codified laws more precise and clear. For example, the custom of the Sati system, which meant that a widow used to sacrifice her life by sitting on the top of her deceased husband’s funeral pyre, was abolished. Some customary practices were also changed by codified laws. Earlier, women were not given preference in matters of succession. The codification of Hindu law brought into picture the Hindu Succession Act, 1956, which provides for equal treatment to sons and daughters in matters of succession.

Many tribal customary laws are still recognised even after codification and form part of them. For example, Section 2 of the Hindu Marriage Act, 1955, Section 2 of the Hindu Succession Act, 1956 and Section 3 of the Hindu Minority and Guardianship Act, 1956 do not apply to schedule tribes defined under Article 366(25) of the Constitution of India, 1950, and can only be applied if the central government notifies about the same in the official gazette. The customary laws of these tribals are protected in this way.

Customs have been recognised under the Hindu Marriage Act, 1955, in two other situations.

Section 7 Marriages can be solemnised in accordance with customary rites and practices. It recognises ‘Saptapadi,’ the practice of taking seven vows around the sacred fire, as valid. Only when saptapadi is completed is a marriage considered binding.
Section 29(2) Marriages can be dissolved by way of customary practices and it does not matter whether the marriage was solemnised before or after the enforcement of the Act. In the case of Shakuntalabai vs. L.V. Kulkarni (1989), the honourable Supreme Court stated that the custom of dissolution of marriage by divorce, which had been followed continuously, is valid and marriage can be dissolved by customary divorce.

Even Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956, recognizes customs. A married person or a person below the age of fifteen may be adopted if there is an established custom in that regard.

Women rights and customs

Hindu women were assumed to be incompetent towards men and required constant protection early in the times. The chastity of single girls and the faithfulness of married women were strong indicators of a family’s respect in ancient times. Their activities were closely monitored and they were in a state of dependence. These women had to follow various customary practices in ancient times:

Forehead dots: The married women had to mandatorily apply red kumkum as ‘tilak’ between their eyes on the forehead or between their partition of hairs. Unmarried women were not allowed to wear it.
Purdah System: The women had to follow the purdah system , which means covering the face with a veil before stranger men. A woman could not be seen by anyone except her husband or her in-laws. They could not even talk to their husband in public and had to send messages through their children. These practices restricted the activities to be performed by women and they were not allowed to work outside. All the economic activities were dominated by men, who considered them to be superior to women. This led to the seclusion of women and they had very limited access to the outside world.
Property rights: Their right to hold property was disfavoured by the ancient ‘Rishis’ and also in smritis and shastras. So, basically, in those days, holding property with absolute ownership by a woman was not practised and the customs did not allow it. Though she had the nominal right to hold property called stridhan, or women’s estate. This word originates from two words: ‘Stri’, which means women and ‘Dhan’, which means property. Stridhan includes gifts that she got from her father, mother, and brother, gifts given by kings to their first wife when the second wife was brought into the house, the gifts or property that have been expressly accepted, and property that has been obtained through partition or sale. Her husband could exercise veto power over certain limits for Stridhan, too.
Position of widows: The condition of widows in ancient times was very bad. After the death of her husband, a widow was not allowed to remarry. If she does so, she will be considered impure for the rest of her life. It was expected of her to stay loyal to her dead husband and pray for him to get a place in heaven. She did not have the right to adore herself. But no such restrictions were placed on a husband after his wife’s death. The widow acquired the property as a tenant and was not the absolute owner of the property. She had to give back the property to the heirs of the actual and absolute owner of the property. Even she was not allowed to alienate the property to any person according to her will.
Child marriage: As soon as a woman hits her stage of puberty , she will get married. The women were married at a very young age and education was not accessible to them. They were only seen as a means of procreating children and looking after the family household. In many regions, it was the norm to marry girls early or some did it out of poverty to preserve their family integrity. The young girls were not aware of their rights and did as told by their parents.
Payment of dowry: The father of the bride had to pay a huge amount to the bridegroom in his daughter’s marriage, which is known as dowry. It was paid for keeping his daughter happy and providing her financial security. But later on, the husband’s family started mistreating women by physically and mentally abusing her for bringing in more dowry.

The winds of change started to blow with the introduction of legislative reforms aimed at addressing inherent disparities common in Hindu marriages. The rules pf Hindu marriage and gender equality continue to be intricately intertwined with the many different issues at play. Laws try to create equality, but the attainment of substantive equality in married relationships is frequently hindered by cultural norms, patriarchal mindsets, and societal expectations, even in the presence of legal measures. The societal preference for male heirs, violence related to dowries, and unequal property rights are only a few of the issues that continue to cast a shadow over the supposed equality guaranteed by the law. Let us see some of the legislative reforms related to Hindu women:

The Hindu Marriage Act, 1955, aims to codify the laws relating to marriage and divorce among Hindus. It is a pioneering act that focuses on various issues, such as the conditions for a valid Hindu marriage, the grounds for divorce and maintenance, custody of a child after divorce, etc.
The Hindu Succession Act, 1956, threw a light on the inheritance rights of women in a gender-biased society and made efforts to provide equal rights to inherit ancestral property by the son and the daughter. The Act specifies how the interest will be divided in coparcenary property, the general rules of succession in the case of males and females, etc. Even the women were made the absolute owners of the property possessed by them, such as ‘stridhan’, whether a Hindu female acquired such property before the commencement of the act or even subsequent to it. Even widows have the right of inheritance from their deceased husband’s property and this right exists even if they remarry.

In the case of Pratibha Rani vs. Suraj Kumar and Anr. (1985), Pratibha was married to Mr. Suraj Kumar according to Hindu rituals. During her marriage, her family gave her a dowry of Rs. 60,000 including all the gold ornaments, clothes, etc. Soon after marriage, her husband started beating and physically abusing her. After that, she was thrown out of the house along with her children. The defendant even refused to give back all the valuables that were given to her by her relatives that came under the “stridhan.” The honourable Supreme Court held that neither the husband, brother or son nor the father can alienate any property on which she has an absolute right, i.e., Stridhan, without her consent. If such property is alienated without her consent, such a person will be liable to pay back the value with interest.

In the case of Smt. Saroj Rani vs. Sudarshan Kumar Chadha (1984), the constitutional validity of Section 9 of the Hindu Marriage Act, 1955, was challenged by Saroj Rani (the appellant). Her husband, Sudharshan Kumar, earlier filed a suit for restitution of conjugal rights under Section 9 and forced her to live with him. If she did not do so, the respondent had the right to bring legal action against her. The appellant contended that she left her matrimonial house due to cruelty and harassment, and Section 9 was violative of her fundamental rights guaranteed by Article 14, Article 19 and Article 21 of the Constitution of India, 1950. She had the right to live with dignity according to her own free will and the law provision is discriminatory in nature.

The honourable Supreme Court ruled in favour of the appellant and held that the compulsion to live along with her husband under the decree for restitution of conjugal rights as per Section 9 violated her fundamental rights. It stressed individual rights and protected the right of women to live with dignity. This was a landmark case that redefined the legal framework that governed Hindu marriages.

Conclusion

As we have seen in the article, customs play a major role as a source of Hindu law. Customs are the practices that have been followed since time immemorial and affect the social and religious lives of the people who follow them. The various essentials required for a valid custom, such as antiquity, continuity, reasonability, etc., have been dealt with in detail. The customary practices of the scheduled tribes have been protected by the codified laws, while some of the unreasonable customs were abolished. They form the foundation of a legal system and even the codified laws are based on them. They are now recognized as part of Hindu codified laws themselves. The Hindu Marriage Act, 1955, accepts the customary practices related to marriage and divorce, while the Hindu Adoption and Maintenance Act, 1956, accepts the adoption of various persons in accordance with the established customs. These laws have been very progressive for our society and even women have equal rights as men in matters of succession. It provided a progressive outlook for our society and played a major role in reducing gender bias, which was prevalent earlier.