Open Access Research Article
Customs as a source of Hindu Law
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CUSTOMS AS A SOURCE OF HINDU LAW
AUTHORED
BY:- CHAHAT KANCHAN
NMIMS KIRIT P. MEHTA SCHOOL OF LAW, MUMBAI
ABSTRACT
India is a diverse land, which is
full of numerous customs, which are followed with great zeal. And such customs,
apart from the Constitution, statutes, and regulations,
are considered to be a source of the laws. Customs, which were once thought
to be the highest ‘Dharma’, are placed next to ‘Shruti’ and ‘Smritis’ and are
regarded as the main source. According to the Hindu Code, custom and usage
refer to any rule that has been consistently followed for a long time and has
been practiced as law in any local region, tribe, community, group, or family
if it is certain and not unreasonable or against public policy. Under the
velarium of Indian Legal System, custom is also recognized as a significant
source of law. According to Article 13(1) of the Constitution, all earlier
statutes that conflicted with it were deemed invalid at the time the
Constitution went into effect. The most persuasive force that has assisted us
in convincing the ancient laws to take control of the state and regulate
society to only embody those customs that were considered to be right for the
sake of laws taking over command of what custom was in society is custom. However,
there are some customs and practices that may be harmful and discriminatory in
nature. For instance, the practise of not allowing female members of a family
near crematorium is discriminatory in nature on the grounds of gender. This
practise denies women to participate in the final rites and perpetuates gender
inequality. It also reinforces gender stereotypes and contribute to
marginalization of women in the society.
KEYWORDS: Customs, Hindu Law, Practices, Women.
INTRODUCTION
Sir William Jones transcribed the Manu
Smriti, the first written account of Hinduism, in 1794. It depicts the societal
and spiritual customs of the early Hindus. Manu claimed that Hindus were
divided into four castes, or Brahmanas, Kshatriyas, Vaisyas, and Sudras, and
subsequently into four colours. In that arrangement, the other castes respected
the relationship between kings and Brahmanas. The Grihyasutras, faith, and the
status of women in society are all explained. A specific designation applied to
Vaisyas and Sudras. In other words, One of Hinduism's innumerable Dharma
sastras is the Manu Smriti, a prehistoric law manual. One of the first Sanskrit
texts to be translated by Sir William Jones during the British occupation of
India in 1794 was used to create the Hindu law by the colonial administration. Hindu
law stands out from other historical and contemporary legal systems due to a
few salient characteristics. It was not precisely positive law in the
sense that term is used in contemporary jurisprudence, particularly in the
Analytical school of the West. Hindu law has undergone numerous revolutionary
changes, both legislative and otherwise, and now practically needs to be
rewritten for the contemporary world. Hindu law was not enacted at the behest
of any earthly monarch or by any governmental power. Hindu law was once thought
to have a divine foundation. However, this was just a hypothesis that was
unique to early human thought and was used to conveniently explain away a lot
of things that could not otherwise be explained. This theory attributed everything
to God or religion, just like other theories from previous eras did. Like how
laws are made today by human lawmakers, ancient Hindu law was created by human
actors like sages and philosophers. And many of these old laws became obsolete,
but are still practiced as customs and traditions.
A custom is a particular principle
that has been practiced in a particular area since the beginning of time,
either in reality or hypothetically, even if it is inconsistent with or
contrary to the general precedent-based law of the community. The traditions of
a group of people are a reflection of the values and beliefs that its members
have upheld over many years. Every social group in the world has its own
distinctive practices and beliefs, some of which benefit all members while
others have developed to be harmful to a specific group.
RESEARCH QUESTIONS
1. How do customs embedded in normative
practices become a part of the law?
2. What are some customary practices
that promote patriarchal stereotypes?
RESEARCH OBJECTIVES
The objectives of this research are:
1. To find out how do customs become a
source of laws.
2. To shed light on some customary norms
that are prevalent in India.
RESEARCH METHODOLOGY
The research for this paper has been
done through various articles, journals, and books. The citation has been done
in Blue Book 20th edition.
REVIEW OF LITERATURE
Keshav Jha (2019) in his paper talks about Shruti,
Smriti, Sadachar, Swatah Prajna and modern day legislations as sources of the
Hindu Law. It has always been open to changes to accommodate the desired
necessities. The author highlights the importance of the Vedas, namely the
Rigveda, Samaveda, Yajurveda and Atharvaveda, as the main source of origin of
the Hindu laws since time immemorial. In fact, it is even mentioned in texts
that “Vedas, Smritis, Customs and own’s consciousness determine the fourfold
means of defining the sacred law.” Satarupa Sarkar (2022) critically
analyses the Manu Smriti and talks about the origins of the laws in it. His
focus is on women’s rights and casteism that was prevalent and is still
prevalent in the society to some extent. He criticises and appreciates the Many
Smriti. He points out that Dr. BR Ambedkar was one of the leading critics, as
according to him the book was responsible for the prevalence of caste system,
which is true to some extent.
Gerald J. Postemat states that legally required
custom is typically examined in terms of two independent variables: the
regularity of the behaviour and the beliefs of the people participating in
the behaviour. This idea of law as additive is seriously flawed. He believes in
the addition of meaningful conduct and norms into a web a legally accepted
reason. Kheera Daly-Novoa talks about Hindu funerary rights (Antyeshti
Samskara), which is mainly performed by male relatives, under the guidance of a
Hindu priest. In fact, many Hindu texts prefer a male presence over female
presence during the last rites. When women perform such rites, it is considered
as age old boundaries being broken since previously women were not allowed to
perform the rites.
ORIGIN OF CUSTOMS
Hindu Law is one of the oldest laws
in the world, according to which law is the same as Dharma. In the contemporary
world, laws originate from legislations and policies, but in the past laws
originated from customs. The traditional customs or practices of a specific
culture or society can have many different originations. Many traditions have
their roots in historical customs that have been handed down through the
generations. For instance, religious observances or ancient traditions may have
served as the foundation for cultural festivals and celebrations. Social norms,
which are the unspoken guidelines for behaviour in a specific society or group,
can also give rise to customs. For instance, in many societies, shaking hands
when meeting someone for the first time is considered polite. Environmental
variables like geography, climate, and the availability of resources can also
influence customs. For instance, the local temperature and materials are
frequently factors in the housing and clothing choices of indigenous peoples
around the globe. Contact with other societies can also lead to the development
or modification of customs. For instance, over time, a society's traditions may
adopt foods, fashions, or musical genres from other countries.
ELEMENTS OF A VALID CUSTOM
For a practice to become a custom,
the following are the requirements:
·
Ancient- The
term "ancient" denotes that the practice must be at least somewhat
old. Ancient is synonymous with the phrase from time ago. According to
Blackstone, a custom must have existed for a very long time for it to be
considered lawful and binding. If a custom was created within the last ten to
twenty years, it can be considered long, very long if it extends back thirty
years, and ancient if it goes back forty years. In the case of Urminath Chaudhari v. Goureenath, the court
held that a tradition that has been followed for a hundred years establishes
enough antiquity to draw attention to itself as being old. In order to be
accepted by society, a legitimate custom must satisfy the fundamental
characteristics. In Rajothi v. Selliah, the
High Court ruled that no one is required to make any rules in the contemporary
era because that is the responsibility of the Legislature.
·
Continuity- The
practice is, de facto, very old. It must comply with the specified uniformity
and continuity rule, as these are the factors that support its foundation and
long-standing use. The above claim of being uniform and continuous is void if
there has been any change in the cultivated practice since the time-honored
use, which defeats the goal of stability. A custom that dates back to the
ancient era must be observed constantly and without interruption. A custom is
said to have deserted if it is not practiced for even a brief period due to an
unintentional or deliberate belief or for any other cause.
·
Certainty- A
custom must be certain and clear in order to acquire validity. The traditions
should be explicit in terms of what they imply or assume. Any degree of
obscurity or uncertainty will cause confusion, which will negate one of a
legitimate custom's key components. The degree of clarity with which a custom
is practiced to its fullest potential gives it power. It is void if there is
any non-confirmation or non-compliance with the same.
Before being included in regulations,
customs must appear to be reasonable and should not cause more harm than good.
If it violates the aforementioned requirements, it must be thrown out.
Traditions shouldn't be up for discussion in the presence of rudeness and
unreasonableness. For instance, a tradition permitting marriage with the
daughter's daughter or the practice of Sati should not exist because they were
created in an unreasonable manner and should never be allowed to exist.
However, it is not necessary or required for traditions to have logical
underpinnings. A valid custom must adhere to legislative enactments and be
justified by morality, public policy, or an explicit law. There is no
prescriptive formula given anywhere that would allow us to describe or assess
immorality. The determination of immorality for the benefit of the general
public rests with the judges. The longevity of a practice is not an
assurance that a custom is righteous or reasonable. Consequently, it cannot
be guaranteed that it will be upheld in judgment. Marriage with the daughter's
daughter was deemed immoral in the landmark case of Balusamy Reddiar v.
Balkrishna Reddiar, despite the presence and practice of such a custom in
the Reddiar community of Tirunelveli district.
TYPES
OF CUSTOMS
Customs can be classified into the
following categories:
1. Unsanctioned Customed- This theme
shields customs that deal with less significant aspects of our social lives. As
a result, they are also known as customs without legal duties. For instance, it
is customary in India to avoid wearing black clothes to any auspicious or
festive events, such as wedding ceremonies, or from wearing brightly coloured
clothing to funeral services as a sign of respect for the deceased. No man is
compelled or under any duty to carry them out. However, people in a community
often engage in these behaviours out of a fear of social rejection rather than
a desire. Individuals have adhered to these because of the peer pressure of the
general public and their opinions, which discourage them from failing to
execute them because failing to do so will result in their extinction.
Consequently, they are also known as societal customs.
2. Sanctioned Customs- This category
segregates customs that are clearer and demanding in nature and are viewed as
the responsibilities and duties. These practices may modify the
responsibilities of marriage and childrearing, the transfer of property upon
death, or the methods of concluding and carrying out deals. Such practices
interfere with the serious pursuits of life, the work that must be done to
create and ensure sufficient conditions for communal life, rather than the
realm of social formalities, external decorum, or aesthetics. Due to the
approval or acquisition of certain standards or qualifications by these
traditions, they now possess the legal status. The same will have legal
repercussions if it is violated because they are enforceable or mandatory in
nature.
CONTROVERSIAL CUSTOMS IN HINDU LAWS
As mentioned above, India is a land
of customs. Every culture, every tribe, every district, has it own customs that
it follows, which are passed from one generation to another through practice
and word of mouth. And these customs are known by people all over the country,
but there are some customs that are not known to everyone, and many of these
lesser known customs are controversial as they result in moral harm to the
people. Some of these customs are as follows:
1. The Travancorean Nambudiri tribe
practiced a revolting tradition. This caste's female members typically get
married before they reach puberty. However, according to tradition, if a
girl who has never been married begins to show signs of puberty and passes away
before engaging in intercourse with a man, her parents must pay a man
money and gifts to complete such a form of marriage because failing to do so
would bring shame to the family.
2. When a family's eldest girl marries,
the Morsa-Okkala-Makkalu caste in eastern Mysore has a tradition that requires
the mother to submit to the amputation of two joints from the right hand's
middle finger and ring finger. Additionally, the bridegroom's mother or, in her
absence, the mother of the closest cousin, must agree to this heinous
mutilation if the bride's mother is deceased.
3. In some places in India, there is a
custom where an uncle can wed his niece, a widower can remarry his late wife's
sister, a first cousin can wed his first cousin. People who are related in this
way have the exclusive right to intermarry based on their relationship. If they
so choose, they can also forbid any other unions and impose their own
preferential right, regardless of how old, unfit, weak, or poor they may be. However,
several odd and absurd differences are made in this context. An uncle is
permitted to wed the daughter of his sister but not the daughter of his
sibling. The children of one brother and one sister may intermarry, but the children
of two brothers and two sisters may not. The male line always has the option to
enter a marriage contract with the female line among descendants of the same
stock, but the offspring of the same line are never allowed to intermarry. The
justification for this tradition is that male and female lineage children
continue to refer to one another as siblings and sisters for as long as it is
acknowledged in public that they are descended from the same stock. If the
children of either the male or the female line intermarried, it would be said
that a man was marrying his sister. However, the children of the male line do
not refer to the children of the female line as brothers and sisters, and vice
versa; instead, they refer to each other by special names that express their
relationship. So, a man can and even must marry his sister's daughter, but
never his brother's daughter. The daughter of a male first cousin's maternal
aunt is the only female first cousin he may marry; he is not permitted to wed
the niece of his paternal uncle.
4. One of the customs practised in
Karnataka is baby throwing. People engage in the centuries-old rite. In a 2009
ritual captured on video, robed priests shake terrified infants before lowering
them to the earth below, where neighbours are waiting with blankets to catch
the traumatised infants. The audience erupts in jubilation as the kids land
safely and passes each baby around before handing them back to their mothers.
Local activists were successful in having the practise outlawed in 2011, but it
has now reappeared to the Nagrala village's Digambeshwara temple.
5. Another age-old custom that has been
followed by people is the practice of not allowing the female members of a
family to be present at the last rights of their family members. Even though
nowadays people have adopted a new mindset, there are still numerous families
who practice this. In fact, most of the people in India practice this. This
custom is not as physically harmful as the ones mentioned above, but it
promotes gender bias in the society. The Antyeshti Samskara is mainly performed
by the male members of the family. In fact, most Hindu sacred texts promote this.
And even though the scriptures allow females to perform the last rites in
exceptional cases, this occurs when there is no male member present to perform
the act.
There are so many more customs that are
prevalent among different tribes in the country, in different districts. Many
of them should be discontinued by law due to the harm they cause in the
society.
CONCLUSION
In the early stages of society's
development, customs were regarded as the only basis of law. They serve as the
framework for all legal systems. They came into existence in order to regulate
human behaviour and bind individuals to a set of norms within a community.
Traditions are routine behaviours followed by the general public since the dawn
of time that are logical and incorporated into the law. Customs have a long
past dating back to the dawn of humankind. Only when a custom satisfies the
requirements is it recognized as legitimate, and only then is it given legal
sanction and the status of being a legally binding obligation in society.
REFERENCES
JOURNALS AND ARTICLES:
1. Keshav Jha, Sources of Hindu Law:
A Comprehensive View, Vol. 6 INTERNATIONAL JOURNAL OF RESEARCH AND
ANALYTICAL REVIEW, 2019.
2. Harish Chander, Hindu Law and the
Constitution, Vol. 38 JOURNAL OF THE INDIAN LAW INSTITUTE, 1996.
3. Priya Banerjee, Dowry in 21st
Century India: The Sociocultural Face of Exploitation, Vol. 15 TRAUMA,
VIOLENCE & ABUSE, 2014.
4. UC Sarkar, Hindu Law: Its
Character and Evolution, Vol. 6 JOURNAL OF THE INDIAN LAW INSTITUTIE, 1964.
5. Satarupa Sarkar, ‘Manusmriiti’: A
Critical Analysis, Vol. 8 INTERNATIONAL JOURNAL OF HUMANITIES AND SOCIAL
SCIENCE STUDIES, 2022.
6. Jaya Jha, Custom as a Source of
Law, Vol. 1 BURNISHED LAW JOURNAL, 2020.
7. Harikumar Pallathadka, Relevance
of Customs under Modern Hindu Law, Vol. 7 EUROPEAN JOURNAL OF MOLECULAR AND
CLINICAL MEDICINE, 2020.
8. Jahnvi Ahuja, Custom as a Source
of Law, INDIAN LAW PORTAL, 2020.
9. Richard Lariviere, Dharamshastra,
Custom, Real Law and Apocryphal Smritis, Vol. 32 HOURNAL OF INDIAN
PHILOSOPHY, 2004.
BOOKS:
1. DAVID J. BEDERMAN, CUSTOM AS A SOURCE
OF LAW, Cambridge University Press.
2. Vol. 2 VIJAY MAHARAJ, GLOBAL INDIAN
DIASPORA, Routledge, 2022.
3. ABBE DUBOIS, HINDU MANNERS, CUSTOMS
AND CEREMONIES, 2007.
4. Dr. A.S. ALTEKAR, THE POSITION OF
WOMEN IN HINDU CIVILIZATION, 1987.
CASES:
1. Urminath Chaudhari v. Goureenath, 1870.
2. Rajothi v. Selliah, 1966.
3. Balusamy Reddiar v. Balkrishna
Reddiar, 1957.
Article Information
Customs as a source of Hindu Law
Authors: Chahat Kanchan
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
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International Journal for Legal Research and Analysis
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