This article is written by J.Suparna Rao from Ramaiah Institute of Legal Studies. This article discusses the concept of Role of Customs in Hindu Law.
Laws are the basic structure on which the country is built and which regulate the functioning of three organs of the government namely Legislature, Executive and judiciary. Law can also be defined as ‘Dharma’ itself, which means it is the duty of a person. Indian system has two different types of laws namely – Territorial or General laws and personal laws. Hindu law is one such personal law. Hindu law is the rules made for the peaceful existence of the people in the society. Hindu law has been considered as one of the oldest forms of law.
It has been derived from the word ‘Sindhu’ which is a designation for the Indus River. Hindu law is believed to be derived from God himself or they are considered to be the words of God, revelation by the god himself and so it is very divine. Hindu law was codified by the Dharmashastra writers. Hindu law governs Hindu’s in their many social aspects such as marriage, divorce, adoption, minority and guardianship, inheritance, and other family matters.
There are various sources of Hindu law which were broadly divided into two categories- Ancient sources and Modern sources. Ancient sources include Sruti or vedas, Smriti or Dharmashastras, Commentaries and Digests, Customs and usages. Modern sources include Judicial Decisions or Precedents, Legislation, Justice Equity and Good Conscience.
Now let us briefly understand the word ‘Custom’. Custom can be considered as the principle source for the development of the Hindu Law. Custom in common parlance is an act or behaviour which is repetitive or is traditionally accepted or can also be defined as a habitual practice that a person is uniformly following for a long time. It can also be termed as ‘Rule of Conduct’.
From the time back ‘Achara’ that is custom is regarded as the highest of all ‘Dharma’. Customs differs from area to area and family to family. Customs are not static rather they are such that they keep changing and evolve with time. According to manusmriti if the custom is proved it will overpower and prevail over written text or laws.
Section 3 of Hindu Marriage Act, 1955 defines custom as a rule which is followed for a long time and has obtained the force of law among people of the Hindu community. It also stated that custom must be ancient, must be reasonable, and it should not be in derogation to the laws of the country.
Types of Custom that shaped Hindu Law
Customs are mainly of four types. They are: Local Customs,General Custom, Family Customs, Class or Caste Custom.
These are the customs or practises that are binding on people belonging to the Hindu community of a particular geographical area. Thus the major part of that particular place culture.
These are the customs or practises that prevail in the country as a whole. Example indian customs and traditions are the major attraction for tourists. Some of them are the ‘Namaste’ which is used to greet people, ‘Tilak’ a ritual remark which is a sign of blessings or auspiciousness.
Family Custom can be defined as family tradition or family culture, which they are following from a long time which was given by their ancestors long back. It can also be stated as the environment in which a person is born and brought up by their parents and ancestors.
Class or Caste Custom
These are the customs for a particular caste or sector or class of people such as traders, agriculture , businesses etc. Every caste or class has different traditions to be followed which they have been following for a long time which can be named as class or caste custom.
Essentials of valid Custom
Customs can be anything which explains the behavioural pattern of a certain group of people, it can be an act on the basis of which group of people can be classified. They are one of the earliest sources of law. It can alternatively be called as traditions, cultural ideology and cultural philosophy.
There are various essentials for a custom to be a valid custom and to have the force of law:
The custom must be ancient, which should have been established much earlier and have existed for a long time uniformly. Antiquity of a custom is an essential and foremost element of a valid custom. Customs must belong to a very distant past. It must be followed by people from time immemorial. Though Hindu Law did not fix any particular period of time to judge the antiquity of the custom but English Law fixed year 1189 to test the antiquity of the custom.
Invariable and continuous
Customs to be valid has to be practiced for a specific period of time and should be still in existence. It could be taken as evidence for having the force of law and for having custom accepted in the eyes of laws. It should be followed without any interruption. If a custom is not continued for a period of time or is discontinued it comes to an end and such tradition or practise is no longer considered to be a custom.
Clear and unambiguous evidence
There should be clarity in giving the evidence of a custom. The group of people who are following it must prove it through their actions or acts or general instances for the existence of such custom. In collector of Madura v. Mootoo Ramalinga, the court held that if there is clear proof of custom, it will supersede the written text or laws.
The custom must be supported by the valid reasons for being followed. To consider it as a valid custom it is necessary that such custom has been derived from a series of reasons. It has some reasonableness for its existence. It should be based on the right to be enforceable. It should not be based on certain assumptions which are not acceptable.
Not opposed to morality or public policy
Customs should not be against the public policy which means it should aim at the well being of the people, good of the people. Customs should not be against the social rules. Customs should not be against the moral values or set of ethical standards that the society follows.
Not opposed to any law
Customs to be valid and accepted in the eyes of law, it must not be in derogation with the laws of the country. The customs must not be opposed to dharmashastras. It must not be forbidden by any laws or enactment of the legislature. It is necessary that customs are collateral with the laws to be accepted as a valid custom.
Proof of custom
A custom to be established as a law binding upon the Hindus and it is necessary that its existence have been proven before the court. It must firstly fulfill all the valid essentials of the valid custom. A party who is claiming for the existence of a custom before the court must through the general evidence prove its existence and is consistently followed by the people of community and such a proof of custom will make it a valid and binding law for the society.
In this case the court held that even the judgement on such customs can be presented before the court as evidence of the existence of the custom to support the establishment of such custom and its acceptance in the eyes of law.
Burden of proof / Onus of proof
The person who is ascertaining the establishment of the custom which is in derogation to the laws must prove the existence of such custom and so the burden of proof lies upon such person.
In this case supreme court held that burden of proof lies upon a person who claims its existence and such person have to prove that the custom is valid enough to be established contrary to laws.
In case where a person wants any custom to be discontinued, again such burden lies upon that person to prove that he has reasonable grounds and reasons for the discontinuance of such customs.
Judicial notice of a Custom
If a custom is established so well and is very much evident to which a Court takes a judicial notice of it and which has repeatedly brought to notice of the Court through various cases. Such customs are not needed to be proven rather should be established and accepted by the Court without any proof. It is not necessary to be proved in each individual case through various acts or conducts and also the burden of proof lies upon no one. Such customs are held to be a part of general law.
Custom and Usages under codified Hindu Law
With the codification of the Hindu law, many customs were abolished such as the sati system. Sati system which was earlier followed by the Hindus in which a widow sacrifices by sitting on the top of deceased husband’s funeral. Earlier women were not given preference for succession, with the codification of Hindu law it brought into picture The Hindu Succession Act, 1956 it has given equal treatment to sons and daughters as in matters of succession. Narad smriti considered customs to be very powerful.
Codified Hindu Law has given an important place to the custom and usages and considered it as a parent of Hindu law but it is limited to certain extent as the customs have to be expressly proved or brought to the notice to establish it as law. Custom under ‘Hindu Marriage Act 1955’ has been used in three situations. Firstly, the marriages can be solicited as per the customary tradition which is followed by the party. Secondly, divorce can be obtained by parties on the prevailing custom and usages. Thirdly, adoption can be done as per the customary rules.
Right of inheritance of women before the Act
Position of a woman or a widow as assigned by shastras in society or in her family was described as the state of dependence. They were assumed to be incompetent to men and requires constant protection. They were considered to dependent because they could not read vedas and also they were incompetent to do sacrifices. Because of them being dependent their right to hold property was also disfavoured by the ancient ‘Rishis’.
In smritis, the right to hold property was given to perform various religious ceremonies, where women were declared incompetent to perform and so they were incompetent to hold the property. So, basically in those days holding property with absolute ownership by a woman was not allowed. Though she had nominal right to hold property called stridhan or women estate. Her husband can even exercise veto power over certain limits to stridhan also.
Stridhan , Non stridhan, Women estate
The property of a women belonging to Hindu religion can be classified into two categories:
The properties on which she has absolute ownership
Before the codification of Hindu law, the stridhan and women’s estate were distinguished from each other and after the codification of the act all the property which a Hindu female acquired before the commencement of the act or even subsequent, she will be the absolute owner of such property and the difference was wiped off between the stridhan and women’s estate after the codification of the Hindu Law.
Coming back to the properties on which she had absolute ownership, having a right to enjoy during her lifetime includes ‘Stridhan’.
STRIDHAN- This words origin can easily be understood- ‘Stri’ which means women and ‘Dhan’ which means property. Stridhan according to various commentaries includes gifts which she got by her father, mother, brother, gift given kings to their first wife when second wife was brought into the house, the gifts or property which has expressly accepted, the property which has obtained through partition or sale. There are various kinds of stridhan.
- Adhayagni which means gift received by a woman at the time of nuptial fire.
- Adhyavaharika which means gifts received by a bride on her marriage.
- Prtidatta is a gift received by daughter-in-law out of love and affection by mother-in-law and father-in-law.
- Padvannadanika gifts received from elders while wishing them.
- Anvadhyeyaka gifts which she receives from her husband.
- Adhivedanika is the gift that the first wife receives when the second wife is brought into the house.
- Shulk is the money which a woman receives for marriage.
- Bandhu Datta are the gifts which she received from mother and father relatives.
- Vritti is the money which she received for maintenance and from that money the property she purchased is also a stridhan.
- Yavtaka are the gifts given to the wife during the marriage by the guests.
The properties on which she has limited rights
The women estate will fall under such a category. Before the codification of the Hindu Law the widow acquires the property as the tenant. She is not the absolute owner of the property. She has to give back the property to the heirs of the actual and absolute owner of the property. She was not allowed to alienate the property to any person according to her will and after her death the property will not go to her heirs but to the heirs of the person who is the absolute owner of the property and has all the rights. She is only the limited owner of the property having certain restrictions as mentioned above.
In this case the Court was of the opinion that women character with regard to the property in a women estate is that of the owner but the powers vested in it are limited. It could be stated as she holds such an estate of property to herself and then after her, the husband heirs.
Stridhan and its position before the codification of Hindu law
According to Manu script, a woman cannot acquire property. All the property which belongs to a woman or son or a slave belongs to the person to whom the woman or slave belongs or stays with. It states that it doesn’t mean that women cannot own property rather it means that they can own but they cannot transfer or alienate the property. She was not allowed to alienate the stridhan in which her husband also had right without the consent of her husband.
Stridhan according to judicial decisions
In this case the pratibha was married to Mr.suraj kumar. She married Mr.suraj according to the Hindu rituals. During her marriage, her family gave the dowry of Rs. 60,000 including all the gold ornaments, clothes. Soon after marriage her husband started beating her, physically abusing her and then finally she was sent out of the house with her children. They even refused to give back all the valuables which were given to her by her side of relatives that comes under the “stridhan”.
It was held that husband, brother nor son, nor the father cannot alienate any property on which she has absolute right or “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 this case the respondent was married to Mr.Jang singh. At the time of marriage she was given various valuables such as clothes, ornaments, furniture from her parents, husband and relatives. The husband was going on a business trip and so he asked the wife to give all the valuables to his parents. She did so. Later she came to know that it was his husband’s plan to desert her. Her in-laws didn’t allow her to wear ornaments which she was gifted at the time of marriage.
She was not given permission to secure them back. Her in-laws misused the ornaments without her permission. The Court ruled that the husband and the wife have joint right on the gifts received during a marriage but certain things like ornaments are meant to be used by the wife only. No other person can exercise any right over the gifts received during marriage other than husband and wife. Everything which is offered to the bride on her marriage by the bride’s relative is her “Stridhan”. Groom side is bound by law to return all such property, ornaments,money and every such belongings.
The supreme court gave a very important decision with regard to stridhan in this case. The court said the gifts which are received during the marriage are stridhan. It also divided stridhan into three categories. First the gifts which are for her own use. In these kinds of gifts she will have absolute ownership. Secondly, gifts on which she and her husband have a joint right , wife ownership will not be disregarded. Even if marriage breaks or dissolves her right over those gifts will exist. Thirdly those gifts which are given for the use of husband and the in laws, her right won’t be there over such gifts. So, the stridhan will fall under the above two categories only.
Hindu Law is a law which is considered to be of divine nature as it is believed that it has been developed on the words of god, theories given by god. It is one of the most ancient laws and was written by various rishis. There are various sources of Hindu law. Sources of Hindu law are divided into two categories namely ancient sources and modern sources.
Ancient sources of Hindu law include shruti, smriti, commentaries digests, and customs and usages. Modern sources include judgements and precedents, legislation, justice, equity and good conscience. Among the various ancient sources of Hindu law custom and usages are regarded as one of the most important sources of Hindu law. They are considered as a parent of Hindu law. Custom and usages have thus played a major role in developing Hindu law.
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