A CRITICAL STUDY OF CUSTOMS AND USAGES IN HINDU LAW: ITS COLONIAL TREATMENT AND CONSEQUENCES BY - ALIND GUPTA
“A CRITICAL STUDY OF CUSTOMS AND
USAGES IN HINDU LAW: ITS COLONIAL TREATMENT AND CONSEQUENCES”
AUTHORED BY - ALIND GUPTA
Abstract
The article analyses the importance of customs and usages within the
Indian context and its role in law making in the British India and subsequently
in independent India. The first part deals with the historical school of
jurisprudence which is centered around customary law. It also covers the
crucial differences between the historical school and analytical school. The
second part highlights the essential characteristics of a valid custom before
focusing on the colonial treatment of customs and usages by the Britishers. It
delineates the complex choices faced by the British when they encountered the
diversity within India. The final part points out how the codification exercise
ossified personal laws and robbed it of its core element of diversity. This
attitude was inherited by the English educated leaders of independent India and
made its presence felt in the post-constitutional personal laws.
INTRODUCTION
Customs and
usages represent those practices that have attained the force of law due to its
general observance in a community. It can be defined as the unwritten law
sanctioned by immemorial usage.[1]
All law originally was customary as there was no law making body to legislate.
Even after the advent of smritis and various commentaries, the customs
maintained their potency. The customs formed the basis of such smritis and
commentaries and in case of conflict between the text and the customs, the
customs were given priority. The fact can be gauged by the judgement of Sir
James Colville when he states that ‘clear proof of usage will outweigh the
written text of law’.[2]
The Britishers also recognized the significance of customs in the Indian
society and too tried to give due emphasis to customs and usages ingrained in
the society through their regulations. The
Punjab Laws Act of 1872 stipulates that, in relation to a wide range of
subjects, the primary principle of determination shall be ‘any
custom applicable to the parties concerned’.[3]
Religious scholars like Manu too realized the supremacy of the customs when he
proclaimed immemorial custom as transcendent law.[4]
Narada echoed Manu and exclaimed, ‘custom is powerful and overrides sacred
law’.[5]
Thus, we can see how customs were regarded as sacrosanct by various religious
thinkers and this thinking trickled down to the British, at least initially,
who gave due emphasis to customs and usages practiced by the Indians.[6]
PART 1- HISTORICAL SCHOOL OF
JURISPRUDENCE
The study
of ancient Indian jurisprudence belongs to the historical school of
jurisprudence.[7]It is
important to understand this school of jurisprudence to appreciate the value of
customary law. This school of thought emerged contemporaneously with the
Analytical positivism at the beginning of 19th century. Despite
sharing their genesis, both the schools (Analytical positivism and Historical
school) have adopted starkly contrasting approaches to the study of law with
the former heavily emphasizing the importance of legislature and the latter,
making customs as the focal point.
Friedrich
Carl von Savigny, a German jurist and historian is widely considered as the
founder of the historical school of jurisprudence. The prominence he gave to
historicity of laws is reflected in his monumental work, Das Recht des Besitzes (The Law of Possessions). His subsequent work covering the history of Roman law speaks
volumes about his interest in the history of legal conceptions and
developments.[8]
Savigny was disillusioned with the French revolution and the concomitant
brutalities induced him to rebel against codification.
Savigny was
strong advocate of customary law and firmly believed that law is the product of
common consciousness of people. According to him, law is not an artificial
collection of verbal formula but a part of people’s experience. He coined the
term ‘volksgeist’ to represent the spirit of people i.e., their general
consciousness. He additionally asserted that law formulated without due
regard for the historical culture and tradition of a society is prone to
generate greater perplexity, as law is not a mere "artificial lifeless
mechanical device," but rather emerges from the collective spirit of the
people, also referred to as volksgeist.[9]
Savigny
drew an analogy between law and language, and stated that law, like language, develops
and gains its strength from the society itself. It is not universal in nature
and differs from people to people just like language. To Savigny they seemed
almost a part of the blood and bone of people. Just as people desperately cling
to their language and feel no oppression so bitter as that of being forced to
speak an alien tongue, so, in Savigny's view, people ought to hold on with
tenacity to the laws which have come down to them from their remote ancestors.[10]
He heavily
relies on customary law and propounds that all law originally develops
impulsively and then after reaching certain stage of civilization the jurists
mould the law with respect to the customs. Thus, he introduced the element of
dualism in law and called the part of law representing the common consciousness
of people as ‘political element’ and the part developed by jurists as
‘technical element’. Despite this dualism of law, Savigny concentrated on the
common consciousness of people and expressed that customary laws carry the real
nature of law. One cannot understand the development of law without going
through the spirit of people that created the law. Law is not written in stone
but is a living fact, living in people’s consciousness.[11]
As the
consciousness of people is an ever-going process, the development of law is
also continuous and unbreakable, bound by common beliefs and cultural
traditions of the people. This also provides Savigny a ground to call for
prevention of codification of law as writing down the law would betray its
continuity and would no longer represent the consciousness of people.[12]
Savigny concedes the fact that legal professionals are required for mature law
and realizes that jurists, legal scholars and judges are needed to shape the
technical aspect of the law to supplement the common consciousness of people.[13]
This fact in no way undermines the importance given to customs over the
arbitrary will of the legislator as Savigny clarifies that these legal
functionaries remain only as mouthpieces of the popular consciousness and are
there to supplement the volksgeist not supplant it.[14]
COMPARISON
WITH ANALYTICAL SCHOOL OF JURISPRUDENCE
In order to
clearly outline the boundaries of historical school of jurisprudence in context
to customary law, it becomes imperative to differentiate it from the other
dominant school of thought i.e. the analytical school of positivism, developed
by legal scholars like Austin and Jeremy Bentham in 18th and 19th
century. The analytical school takes a different take-off point as it pre-supposes
the existence of a well-developed legal system. They are neither concerned with
the future of law nor with its past but law as it exists i.e. positus. They
study law in relation to State and consider law as the command given by a
sovereign authority (the State) backed by legal sanctions.
In
analytical school, law is the product of state while in historical school, law
is the product of people’s consciousness i.e. law is found, not made.
Analytical school of thought pre-supposes the existence of state for the
purposes of framing the law but the historical school argues that not only is
the customary law superior to the written law or legislation, it also precedes
it. Analytical school revolves around legislature- oriented statutes while
historical school treats customs as its focal point. In this context, the
analytical school states that for custom to become a law, it has to be ratified
by the legislature or its validity must be upheld by a judicial decision. In
absence of above two requisite conditions, custom would merely remain a
persuasive source of law. The historical school treats custom as the formal
source of law. All other legal creations supplement the custom as custom is
transcendent law and other instruments derive their validity through customs.
The sanctions imposed in case of non-compliance with the law are artificially
imposed by the state in analytical jurisprudence while the sanction is imposed
by the society through social ostracization.[15]
Thus, we
can figure out the stark differences between the two schools of jurisprudence
with one of them focusing on the state in the existing context while the other
one revolving around the people’s consciousness and subsequent importance of
history. Both of the schools offer important insights into sources of law be it
the state-oriented legislation or the people-oriented custom.
PART 2- TRACING CUSTOMS AND USAGES
IN COLONIAL INDIA
Customs and
usages were considered sacrosanct in ancient India. The entire ancient Indian
jurisprudence was based on customary laws.[16]The
foundation of Hindu law i.e. the Smritis heavily relied upon the prevailing
customs. This can be gauged by the fact that smritis and commentaries
repeatedly stated that customs would override the text.
Custom can
be defined as the mode of life adopted by a group of people. It is considered
transcendent law due to its sheer importance and general approval among the
people practicing it. The Sanskrit term for custom is "sadachara,"
which denotes an accepted and established practice. Various commentaries and
smritis have laid down the importance of customs. Yajnavalkya smritis states,
‘one should not practice that which, though ordained by the Smriti, is
condemned by the people’.[17]
Religious scholars like Manu too realized the supremacy of the customs when he
proclaimed immemorial custom as transcendent law.[18]
Narada echoed Manu and exclaimed, ‘custom is powerful and overrides sacred
law’.[19]
The importance given to customs can be ascertained by such overwhelming
response by legal scholars and smritis in favour of the customs.
Customs
were of various kinds. Local customs were
limited to a particular locality like a town or village and was binding on all
the people living within that area. Class
customs were the customs of a caste or a set of community or set of people
practicing a particular profession such as trade, agriculture, etc. These
customs were class or community specific. Family
customs were family centric and covered all members of the family
practicing such custom. These customs did not apply to any other member who was
not part of the specific family. The Privy Council upheld family custom when it
ruled in favour of inheritance practiced in a particular family.[20]
The Privy council further said, ‘Custom binding inheritance in a particular
family has long been recognized in India’.[21]
ESSENTIALS
OF A VALID CUSTOM
All customs
do not have the force of law. Only those customs that are in practice for a
long time, uniform, certain and not opposed to public policy are considered as
a legal custom. Various conditions that must be satisfied by a custom in order
to attain the force of law are enumerated below.
1. Ancient
Antiquity of a custom is an essential
element for it to obtain legality. In Hindu law, immemorial custom has ‘propio vigore’ efficacy of law.[22]
The Latin term ‘propio vigore’ means
‘by its own force’. This signifies that the custom must be practised for a long
time, so as to imply its common acceptance. There is no yardstick to establish
the long use of a custom. Some of the cases have held that the customs must
have existed as far as the living testimony can establish. However, in Babu Narain Lakras v Saboosa,[23]
the Privy Council clarified that a custom maybe not necessarily be immemorial
but its long usage is essential for it to become a valid custom.
2. Clear and reasonable
A custom must be certain and free
from vagueness. A distorted or ambiguous custom makes it difficult to trace its
lineage and establish its long usage. Ambiguity also leads to multiple
applications of the same custom which subsequently reduces its strength and
thereby, precludes it from becoming a valid custom. A custom is legally
recognized only if its clear usage is proved. Custom must also conform to the
public policy prevailing at that time. An unreasonable custom i.e. against the
public policy is considered void. The reasonability is society-specific and
must be determined according to norms of the society in which the custom is
practiced. In Rajah Verma v. Ravi Verma, [24] the
Privy Council determined that a custom allowing the trustee of a religious
endowment to sell the trust was invalid and against to public welfare.
3. Continuity and uniformity
The observance of a custom must be
continuous. Erratic and infrequent usage of a custom takes away its legal force.
Continuity of a custom is also essential to prove its antiquity. If there
exists a single incident where the custom was given up or suspended, it
negatives the legality of a custom. There should not be in any break in the
usage of custom in order to establish its continuity. Uniformity also adds
credence to a custom. A uniform and continuous adherence to a custom proves its
indispensability.
4. Not immoral
Morality is a subjective term and
must be outlined with respect to the facts and circumstances of a particular
case. It is to be tested on the basis of common consensus of the entire
society, not a part of it. Morality of a custom is extremely important as an
immoral custom lacks enforceability even if it is longstanding. In Hira v. Radha,[25] the
court held that allowing a temple girl to adopt a girl with the intention of
training her for an immoral profession is invalid.
COLONIAL
TREATMENT OF CUSTOMS AND USAGES
As we
entered the colonial era, the ingrained significance of customary laws trickled
down to the British, at least initially. The British, bewildered with the
diversity and the vast spectrum of beliefs decided to play safe and adopted the
policy of non-interference in the personal laws of India. The British
Raj demonstrated great care to avoid interfering with, or neglecting to
acknowledge, the rituals and practices that had become integral to the
traditions of the communities in which they were practiced.[26]
This has been reflected in many of their legislations and regulations during
that period. It may be best illustrated with the help of two regulations. 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 parties. In
the absence of such Acts and Regulations, the usage of the country in which the
suit arose’. In the Punjab Laws Act of 1872, it
was enunciated that the first rule of decision be ‘any custom applicable to the
parties concerned’.[27]
The policy of non-interference was
conspicuous in Warren Hastings’ plan of 1772, where a hierarchy of courts was
established to implement the personal laws governing different communities.
Since the East India Company was not familiar with such complexities and
diversity, they relied on a range of indigenous personnel like pandits, maulvis and muftis- who were tasked with
interpreting and aiding the courts in the administration of Hindus and Muslims
through shastras and sharia respectively. The judiciary also
sought to create a body of ‘Christian’ family law, based on English laws of
marriage and inheritance.[28]
Due to dearth of
knowledge about customs and usages practiced in the society, the courts were
very flexible. They allowed the parties to produce evidence to substantiate their
claims to the custom. Judges called for ethnographic evidence from the parties
and assumed the role of legal ethnographers in the process. The shift in ethnographic attention resulted in a
proliferation of gazetteers, district manuals, legal commentaries, and other
published works concerning the castes of India and their distinctive
characteristics. This approach of the colonial courts
can be gauged by the case of Collector of
Madura v. Mootoo Ramalinga,[29] in
which the Privy Council held that ‘clear proof of custom will outweigh written
text of law’.
As the courts gained
access to this ethnographic evidence relating to the communities, they became
reluctant to accept the evidence produced by the parties. The judiciary became
more comfortable relying on state-sponsored sources rather than parties’ own
evidence regarded their customs. The litigants continued to battle the
imposition of colonial identity by pushing for their customs. Unlike the
information amassed by state through gazetteers, district manuals and other
sources, litigants in proof-of-custom cases produced knowledge to maintain
their own identity, which is contrast to the state’s approach of assigning
identities in their quest of legal clarity. Their voices were progressively muted as the state acquired
information from 'official' sources. Starting from the 1860s, one can witness a
noticeable decrease in the frequency of cases where litigants were able to
present their personal law by providing evidence of customary practices. The
colonial state progressively allocated legal identities to litigants,
displaying minimal willingness to listen to their concerns.[30]
Thus, the identity of the people
practicing customs and usages was distorted due to the colonial intrusiveness
via the codified laws. Codified laws stood at odds with the customs and the
initial approach of the colonial courts to uphold the latter soon transpired
into the contrary, where the codification of laws heralded by the first law
commission and Macaulay supplanted long standing customs to a large extent.
This has been illustrated by Menski, when he adjudges the British Hindu law as
a distortion and upheld the law practiced through customs by thousands of
families as the real law.[31]
The desperate attempts by the litigants to prove their customs highlighted the
fact that the litigants did not give in to legal identities imposed on them by
the colonial judiciary. It also helps to ascertain the colonial intrusiveness
in the matters of personal laws through the judiciary.
The case of Abraham v. Abraham[32] sums
up the entire change in the approach of the colonial rulers with respect to
customs. The case involved a woman of Anglo-Portuguese descent, Charlotte Fox,
who was raised as an Anglican. She married a Tamilian, Matthew Abraham, who came
from a Roman Catholic family of paraiyar community,
originally from Madras. After the death of Matthew, the issue arose as to who
was entitled to his property considering he died intestate. Under Christian
law, Charlotte and her sons were legally entitled to have their respective
shares while under the Hindu law, Matthew’s brother was required to have his
share. Both the parties (Charlotte and Matthew’s brother) produced enormous
amount of ethnographic evidence to push for the application of their respective
personal laws.[33] The
9-year long legal battle ended with the Privy Council ruling in Charlotte’s
favour due to the overwhelming evidence on ground portraying the endorsement of
Christian law by the Abrahams. Thus, the practices and customs followed played
a vital role in deciding which law was applicable in this case. However, a mere two years later, the
Indian Succession Act of 1865 was enacted, which essentially extended the
application of English law on linear inheritance in cases of intestate succession
to all Christian families, regardless of their customs or traditions. The
Succession Act, when applied in a top-down manner, established a monolithic
Christian society, which contrasted with the Abraham ruling that
acknowledged the diverse Christian population in British India.[34]
This approach adopted by the colonial rulers extended to all the communities
i.e., the selective disintegration of customs through codification of laws.
BLURRING THE DIFFERENCE BETWEEN
CUSTOMS AND USAGES
In their quest of
bringing uniformity and convenience in the administration of justice, the
Britishers failed to observe the difference between customs and usages. These
terms were used synonymously and interchangeably in most of the British
regulations and judgements.
Much needed clarity is
brought by going through the definitions of customs and usages in the
Halsbury’s Laws of England. ‘Custom’ is defined as ‘a particular rule which 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’. However, ‘usage’ may be
broadly defined as ‘a particular course of dealing or line of conduct generally
adopted by persons engaged in a particular department of business life’.
‘A custom must be local
while a usage may extend beyond the limits of the realm or within a local area,
however small or it may extend throughout all engaged in a particular
business’.[35] [36]
This laxity and variance
in the use of terms is by no means without its dangers and inconveniences.
‘Immemorial local customs are clearly distinguishable from particular trade or
local usages, although in practice frequently confused with them . . . they
lack three of the distinguishing features of customs properly so called.’[37]
‘First: they (i.e. usages) need not have existed from time immemorial. Second:
they need not be confined to a particular locality. Third: usages however
extensive, if contrary to positive law, will not be sanctioned by the Courts,
while customs may be inconsistent with the general law of the land. There is,
also, no requirement for immemorial practice in cases of usages.’[38]
However, one cannot place
all the blame for this anomaly on the British as the translators of the ancient
Hindu codes suffered from the same defect. This could be understood through one
of the most quoted lines from the Manusmriti: ‘Immemorial usage is transcendent
law’. Still, this does not vindicate the Britishers’ approach of bringing
uniformity at the cost of certain values and principles considered
indispensable by the communities.
PART 3- IMPACT OF CODIFICATION
The process to codify the Hindu law
commenced in the late 18th century because the colonial rulers wanted to bring
the social and political life of diverse communities under their judicial
purview. The advent of British rule signified an unparalleled departure from
previous circumstances. Previously, no ruler had attempted to interfere in the
internal affairs of the 'jat' or 'biradari' organizations of different
villages, regardless of the significant reforms implemented at the highest
level. During the Mughal period, the Islamic law expressly acknowledged the
traditional community-based institutions for resolving conflicts.[39]
During Warren Hastings’ tenure, the
groups were allowed to be governed by their personal laws; ‘shastras’ in case of Hindus and ‘sharia’ in case of Muslims. This emanated from the assumption of
the colonial rulers that similar to the European laws, the Indians were also
governed by biblical tenets. This presumption led them to follow a similar
trajectory in India. The inherent flaw in this approach, however, was that
unlike Europe where the pope or the church represented their religion and declared
laws, there was no uniform body of Hindu which declared laws applicable to all
the Hindus.
Although initially puzzled and
bewildered by the amount of diversity and heterogeneity prevailing in case of
personal laws, the Britishers gradually tried to gain control over the people
practicing self-professed laws through codification of laws. However, this
flawed attempt to codify the laws did not take into account the wide-ranging
customs. The codified laws took interests of only a part of the population,
excluding the majority. This colonial Hindu law was Hindu only in its name and
did not represent the laws governing most of the Hindus.
This myth, that the Hindus are
governed by colonial Hindu law perpetuated post-independence, and was reflected
in the subsequent legislations. In an attempt to modernize and codify the Hindu
law, the law-makers were depriving the Hindus of its core element of diversity.
The diversity ingrained in this unique religion was conspicuous in the case of Sastri Yagnapurushadji v. Muldas Bhudaras
Vaishya,[40]where
the court was deciding as to who is a Hindu. The multitude of beliefs makes it
impossible to forge a concrete definition of Hinduism. The court’s observation
was on the same lines when it remarked that Hindu religion does not claim one
prophet; it does not worship one God; it does not subscribe to one dogma; it
does not satisfy the narrow traditional features of any religion or creed.[41]
The Hindu intellectuals
observed the notable fact that individuals residing in India belonged to
distinct communities, worshipped diverse deities, and engaged in varied
rituals.[42]It was
realized by the Hindu religion from the very beginning that truth was not
objective and different views expressed various facets of truth which no one
could fully express.[43]
‘The diversity perceptible in
different parts of the country goes a great way in establishing the fact that
popular acceptance and not imposition from any central political authority has
been the sanction behind the personal law of the Hindus. We should not take the
seeming diversity as an evil which must be instantaneously removed.’[44]
The British were flummoxed by the
multitude of beliefs and since they were accustomed to the homogeneous
societies of Britain, they imported the homogeneity to a place intrinsically
heterogeneous. In their quest to homogenize Indian society, its practices and
norms, they eliminated all those diversities they could not comprehend. This
attitude was inherited by the English-educated rulers of independent India
along with the entire machinery of the colonial government that had fully
internalized it.[45]
The codification of Hindu law in the
1950s by the legislature ossified most of the Hindu law but gave little scope
for customs and usages. Hindu Marriage Act, 1955 specifically recognizes the custom
and usages practiced by the communities. In this context Section 3 of the Hindu
Marriage Act states, ‘the expressions custom and usage signify any rule which,
having been continuously and uniformly observed for a long time, has 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; and provided further that in the
case of a rule applicable only to a family it has not been discontinued by the
family’.[46]
Despite overthrowing most of the
customs and usages, the code gave some leeway to the parties in cases of
customs and usages. In certain specific cases, like dissolution of marriage,
adoption of a child and sapinda
relationship the legislators have allowed the parties to be governed by their
customs if the custom satisfies all the conditions required to obtain the force
of law. In the case of M. Govinraju v.
Munisami Gounder,[47] the
court upheld the custom of Shudras in
which it was considered that when a wife is abandoned by the husband or she
leaves her husband and there is no attempt of reconciliation by either of the
parties, it is to be considered as divorcee. In the case of Savitri Devi v. Manorama Bai,[48]the
court recognized the importance of customary divorcee under Section 29(2) of
the Hindu Marriage Act,1955. It observed:
‘Section 29(2) of the Hindu Marriage
Act, 1955 protects customary divorce. But the party relying on custom must
prove the existence of custom and that it is ancient, certain, reasonable and
is not opposed to public policy. He must further prove that the divorce has in
fact taken place in conformity with that custom.’[49]
In another case involving adoption of
a child according to customary practices, the court relied on Section 10 of the
Hindu Adoptions and Maintenance Act, 1956 which created the room for customs
and usage in cases of adoption. The court said, ‘Ordinarily
a child is to be adopted before 15 years of age. But an exception has been
carved out under clause (iv) of Section 10 of the Act which protects certain
customs and usages. If a boy who is more than 15 years of age the adoption can
be sustained only on proof of special customs or usages governing the parties’.[50]
Notwithstanding
the limited recognition of customs and usages as source of Hindu law, the
courts’ approach of giving preference to uniformity over customs and usages
precluded majority of the communities from their customs. Great many customs
were eliminated from the ambit of law because the standard of proof was very
strict.[51]
The legislature never intended that the customs had their independent identity;
they kept customs and usages under the shadow of codified laws. This approach
was conspicuous in many cases including the case of Bhaurao Shankar Lokhande v. State of Maharashtra,[52]in
which the appellant married a woman during the lifetime of his first wife. The
appellant was prosecuted for the offence of bigamy as the first marriage was
subsisting when he married again. The court said that under Section 17 of the
Hindu Marriage Act, in order to commit the offence of bigamy, the second
marriage must be valid and the validity was to be ascertained with reference to
the essential ceremonies or the customary rites. Due to the high standard of
proof with respect to the customs and the rigid approach, the second marriage
was held to be invalid despite the fact that both were considered married by
the community and lived as husband and wife. This led to the appellant escaping
the clutches of law despite clearly committing the offence of bigamy. In a
similar case, where the parties governed by customs and usages pushed to prove
a custom that mandated monogamy as a rule and called for prosecution of the
party who married again. The court, while rejecting the application of such
custom, said, ‘It may be emphasised that mere pleading of a custom stressing
for monogamy by itself was not sufficient unless it was further pleaded that
second marriage was void by reason of its taking place during the life of such
husband or wife. In order to prove the second marriage being void, the
appellant was under an obligation to show the existence of a custom which made
such marriage null, ineffectual, having no force of law or binding effect,
incapable of being enforced in law’.[53]
5.
CONCLUSION
The
customs and usages practiced by the diverse communities were initially
considered sacrosanct and were not only considered superior to the written text
but were also considered the main source of law in cases of family matters. The
British, inspired by the push for uniformity and under the presumption of
homogeneous society similar to the European ones, initiated the codification of
laws. This codification, initially programmed to supplement the customs later
supplanted them. [54]
As the courts gained access to this
ethnographic evidence relating to the communities, they became reluctant to
accept the evidence produced by the parties. The judiciary became more
comfortable relying on state-sponsored sources rather than parties’ own evidence
regarded their customs. The litigants continued to battle the imposition of
colonial identity by pushing for their customs. Unlike the information amassed
by state through gazetteers, district manuals and other sources, litigants in
proof-of-custom cases produced knowledge to maintain their own identity, which
is contrast to the state’s approach of assigning identities in their quest of
legal clarity.
In their
quest of codification based on a flawed premise, the Britishers pushed for
uniformity in the land of diversity and steam rolled most of the customary law.
The codification was based on Hindu textures like Manusmriti which itself
explicitly considered customs as the transcendent law.[55]
However, this aspect was ignored during the process of codification and
gradually codified laws transcended customs and usage which was in direct
contrast with the texts constituting the codified laws.
This
thinking trickled down to the post-independence era and there was just a little
scope left for customs and usages under the Hindu legislations. The standard of
proof coupled with the judiciary’s reticence towards a non-uniform approach
ensured that the communities were deprived of their ‘living fact’ or customs.
Through codification these communities were forced to be governed by
super-imposed laws completely foreign to their culture and beliefs.
The
notion that the state should act as a tool for implementing social change
without first establishing a shared agreement among the people is primarily
rooted in the operational principles and beliefs of colonial ideology.[56]
The overall impact of stamping out diversity in the name of uniformity was
negative. It brought laws completely alien to the communities. The laws were
also not suited to the conditions prevalent in that particular community. The
cover-up by the way of creating exceptions in favour of customs was
self-contradictory as that highlighted that the codified law has no teeth at
all.[57]
BIBLIOGRAPHY
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Hindu
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Koul AK, A Textbook of Jurisprudence (1st edn Satyam Law
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Mayne, Hindu Law and Usage (16th edn, Bharat Law House 2008)
Menski W, Hindu Law: Beyond
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Myneni S, Family Laws in India (1st edn, Asia Law House 2009)
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A, Introduction to Jurisprudence (3rd
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·
F P Walton, ‘The Historical School of
Jurisprudence and Transplantations of Law’ (1927) 9 Journal of Comparative
Legislation and International Law<http://www.jstor.org/stable/753569>
accessed 18 December 2023
·
Kishwar M, ‘Hindu law: myth and reality’ (1994) 29
Economic and Political Weekly 4 < http://www.jstor.org/stable/4401625>
accessed 18 December 2023
·
Mallampali C, ‘Escaping the Grip of Personal Law in
Colonial India: Proving Custom, Negotiating Hindu-ness’ (2010) Law and History
Review < http://heinonline.org/HOL/Page?handle=hein.journals/lawhst28&collection=journals&id=1075&startid=1075&endid=1098>
accessed 18 December 2023
·
Rattigan W H, ’Customary Law in India’ (1884) Law
Magazine and Review, http://heinonline.org/HOL/Page?handle=hein.journals/lmagc10&collection=journals&id=5&startid=&endid=22 accessed 18 December 2023
·
Robertson L,
'Judicial Recognition of Customs' (1922) 4 Journal of Comparative Legislation
and International Law, http://www.jstor.org/stable/753149 accessed 18
December 2023
Cases
·
Abraham v Abraham [1863] 9 MIA 199
·
Babu Narain
Lakras v Saboosa (1949)
ALJ 360
·
Bhaurao Shankar
Lokhande v State of Maharashtra AIR 1965 SC 1564
·
Collector of Madurai v Mootoo Ramalinga Sethupathy (1868) 12 MIA
397
·
Sastri
Yagnapurushadji v Muldas Bhudaras Vaishya
AIR
1966 SC 1119
·
Soorendranath
Roy v Heeramonee Burmoneah (1868)
12 MIA 91
·
Surajmani
Stella Kujar v Durga Charan (2001)3SC C 13
·
Uma Prasad v Padmavati 1999 (2)
MPLJ 502
Others
·
Halsbury,
Laws of England (vol 10, Lexis Nexis
Butterworths)
·
Katju
M, ‘Ancient Indian Jurisprudence’ (Bharat Hindu University 2010) 14 https://www.academia.edu/16833641/Ancient_Indian_Jurisprudence_by_Justice_Markanday_Katju accessed 18 December 2023
[1] S R Myneni, Family Laws in India
(1st edn, Asia Law House 2009) 9
[2] Collector of Madurai v Mootoo
Ramalinga Sethupathy (1868) 12 MIA 397
[3] Lindesay
Robertson, 'Judicial Recognition of Customs' (1922) 4 Journal of Comparative
Legislation and International Law, http://www.jstor.org/stable/753149 accessed 18 December 2023
[4] Myneni (n1) 10
[5] ibid
[6] W H Rattigan, ’Customary Law in
India’ (1884) Law Magazine and Review, http://heinonline.org/HOL/Page?handle=hein.journals/lmagc10&collection=journals&id=5&startid=&endid=22 accessed 18 December 2023
[7] M Katju, ‘Ancient Indian
Jurisprudence’ (Bharat Hindu University 2010) 14 https://www.academia.edu/16833641/Ancient_Indian_Jurisprudence_by_Justice_Markanday_Katju accessed 18 December 2023
[8] Autar Krishen Koul, A Textbook of Jurisprudence
(1st edn Satyam Law International 2009) 84
[9] Avtar (n8) 28
[10] F P Walton, ‘The Historical School
of Jurisprudence and Transplantations of Law’ (1927) 9
Journal of Comparative Legislation and
International Law <
[11] W H Rattigan, ’Customary Law in
India’ (1884) Law Magazine and Review, http://heinonline.org/HOL/Page?handle=hein.journals/lmagc10&collection=journals&id=5&startid=&endid=22 accessed 18 December 2023
[12] Walton (n11)
[13] Autar (n9) 87
[14] Avtar (n8) 29
[15] Rattigan (n6) 6
[16] Katju (n7)
[17] Mayne, Hindu Law and Usage (16th
edn, Bharat Law House 2008) 46
[18] S R Myneni, Family Laws in India
(1st edn, Asia Law House 2009) 10
[19] ibid
[20] Soorendranath Roy v Heeramonee
Burmoneah (1868) 12 MIA 91
[21] Myneni (n19) 11
[22] ibid
[23] Babu Narain Lakras v Saboosa
(1949) ALJ 360
[24] (1876) 4 IA 76
[25] ILR 37 Bom 177
[26] Lindesay
Robertson, 'Judicial Recognition of Customs' (1922) 4 Journal of Comparative
Legislation and International Law, http://www.jstor.org/stable/753149 accessed 18 December 2023
[27] ibid
[28] Chandra Mallampalli, ‘Escaping the
Grip of Personal Law in Colonial India: Proving Custom, Negotiating Hindu-ness’
(2010) Law and History Review < http://heinonline.org/HOL/Page?handle=hein.journals/lawhst28&collection=journals&id=1075&startid=1075&endid=1098> accessed 18 December 2023
[29] (1868)12 MIA 397
[30] Mallampalli (n29) 1046
[31] Werner Menski, Hindu Law: Beyond Tradition and Modernity
(Oxford University Press 2003) 39-40
[32] [1863] 9 MIA 199
[33] Charlotte deposed 101 witnesses
while Francis (Matthew’s brother) produced 150 witnesses. These commented
extensively on issues of dress, rules of association, caste, and cultural
dimensions of Christian identity.
[34] Mallampalli (n29) 1053
[35] Halsbury, Laws of England (vol 10,
Lexis Nexis Butterworths) 250
[36] Robertson (n27) 219
[37] ibid
[38] ibid
[40] AIR 1966 SC 1119
[41] ibid para 29
[42] ibid para 30
[43] ibid para 41
[44] Madhu (n38) 2147
[45] ibid
[46] Hindu Marriage Act 1955, s3(a)
[47] 1996 SCALE (6)13
[48] AIR 1998 MP 114
[49] ibid
[50] Uma Prasad v Padmavati 1999 (2) MPLJ 502
[51] Flavia Agnes, Law, Justice, and
Gender: Family Law and Constitutional Provisions in India (OUP India 2011)
[52] AIR 1965 SC 1564
[53] Surajmani Stella Kujar v Durga
Charan (2001)3SC C 13
[54] Collector (n2)
[55] Myneni (n19)
[56] Madhu (n38)
[57] ibid