Chapter XXXV. Customs in Modern Indian Law
Volume III pp. 969–974
Chapter XXXV. Customs in Modern Indian Law
CUSTOMS IN MODERN INDIAN LAW
Though an elaborate treatment of customs in modern Anglo-Indian Law is far beyond the scope of the present work, yet a few words on customs in modern times may not be altogether out of place here. When the British began to acquire political domination in India they realized the importance attached to customs by all persons in India and the Charter of the Mayor's court at Bombay in 1753, unconsciously following the ancient dicta of Manu (VII. 203) and Yaj (I. 343), contains the earliest trace in British royal charters of a reservation to the peoples of India 'of their laws and customṣ1 The British Parliament and the Indian Legislatures have allowed customs to occupy a very high place in the administration of law and justice. The preamble to 21 Geo. III chap. 70 (1781 A. D.) recited that one of the purposes for which the Act was passed was that the inhabitants of Bengal, Bihar and Orissa should be maintained and protected in the enjoyment of all their laws, usages, rights and privileges and sec. 17 of that Act provided among other things that, in the case of the inhabitants of Calcutta, their inheritance and succession to lands, rents and goods and all matters of contract and dealing between party and party shall be determined in the case of Mahomedans by the laws and usages of Mahomedans and in the case of Gentus2 and, where only one of the parties shall be a Mahomedan or Gentu, by the laws and usages of the defendant. 37 Geo. III chap. 142 (1796 A D ), sec 13, Bombay Regulation IV of 1827, sec. 26, the Government of India Act of 1915 (5 and 6 Geo V chap 61, sec. 112), Government of India Act 1935 (25 Geo. V chap. 2, sec 223), the Madras Civil Courts Act (III of 1873, sec 16), the Bengal, North-west Provinces and Assam Civil Courts Act (XII of 1887 sec. 37), Central Provinces Laws Act (XX of 1875, sec 5), the Oudh Laws Act (XVIII of 1876, sec. 3), the Bengal Laws Act (XVI of 1872, sec 5) enact that the custom of the parties or of the defendant shall be the rule of decision in matters of succession and inheritance, marriage, caste, religious institu- tions and the like.
The burden of proving a custom opposed to the general law or in derogation of the ordinary rights of another lies heavily on the person alleging it.3 The decided cases lay down several essentials of a valid custom In order to make a particular custom valid it must be proved to be immemorial or ancient, uniform, certain, reasonable, obligatory and it must not be immoral or opposed to public policy or to any express enactment of the Legislature. What antiquity must be proved before a custom can be accepted as valid depends upon the circumstances of each case.4 When it is said that a custom must be ancient it is not meant that the antiquity must be carried back to a period beyond the memory of maṇ According to the Mit. on Yaj. II. 27 smārta-kāla (time within living memory) in relation to possession means a period of one hundred years, while according to Kātyāyana and Vyāsa it is only a period of sixty yearṣ5 On evidence of the prevalence of a custom even for 20, 30, 80 or 90 years the Courts have held that a presumption may arise that the custom is ancient and that if the presumption is not rebutted the Court may accept it as a valid and ancient custoṃ6 Many instances have generally to be adduced for proof of a custoṃ No hard and fast rule can be laid down about the number of instances required to prove a custoṃ7 In certain cases it has been held that specific instances are not absolutely necessary, but the opinions of persons likely to know the existence of the custom is entitled to great weight, even though they may not be able to cite specific instanceṣ8 Customs once prevalent, particularly family customs, may come to be discontinued on account of accident, change in popular sentiment or by the concurrent will of all the members concerneḍ9 Customs must be strictly construed and cannot be extended by analogy or parity of reasoning. Because in a particular caste marriage with a maternal uncle's daughter is allowed by custom, it does not follow that marriage with a maternal aunt's or paternal aunt's daughter will necessarily be valiḍ Vide H. of Dh. vol II p. 467 notes 1095-6. The evidence about a custom should be such as to prove the uniformity and continuity of the usage, the conviction of those following it that they were acting in accordance with law and the consciousness of obligatoriness and ignorance or mutual arrangement.10 A custom must not be unreasonable. A custom of excluding daughters from inheritance was held to be not unreasonable according to the ideas of the Hindu community.11 A custom that only members of certain castes ( and not of others ) were entitled to make use of a temple and to worship therein was held not unreasonable in India, though it may appear obnoxious to cultured people at the present day.12
Customs must not be immoral. Whether a custom is immoral is to be judged by the sense of the whole community13. A custom which authorizes a woman of the lower castes to contract a second marriage without divorce on payment of a certain sum to the caste was held to be immoral14 and the Bombay High Court refused to recognize the authority of the caste to declare a marriage void or to give a woman permission to remarry without a release from the husbanḍ15 The adoption of girls by dancing girls (naikins) has not been recognized by the Bombay High Court,16 though the Madras High Court would recognize such an adoption if there was no intention to make it for purposes of prostitutioṇ17 Dagger marriages are practised among certain casteṣ The Brahmapurāṇa (chap. 111. 15 and 44-46) states that among kṣatriyas there are several forms of marriage such as forcibly carrying away the bride (which is the form called rākṣasa) or marriage with the weapons (of the bridegroom). In modern times dagger or sword marriages have not been held valid by the courts even among śūdras; vide Maharaja of Kolhapur v. Sundaram 48 Maḍ 1, Ram Saran v. Mahabir 61 I. A. 106.
Many customs and usages have been expressly forbidden by the Central Indian or Provincial Legislatures e. g. Sati18, female infanticide,19 slavery,20 marriages of children under a certain age,21 the dedication of women as devadāsis to temples or idolṣ22 This being so, no court will allow a party to plead a custom against these positive enactmentṣ It was recognised in a number of cases that in the Bombay Presidency23 a vatandar joshi had the right to recover by suit from III] a yajaman who had employed another priest to perform reli- gious ceremonies the amount of the fees which would properly be payable to the vatandar joshi if he had been employed to perform such ceremonies and also the right to recover damages from a person who intrudes upon his office. But Bombay Act XI of 1926 (the Invalidation of Hindu Ceremonial Emoluments Act) now enacts (by sec. 4) that no person shall be entitled to claim as a matter of right any ceremonial emoluments from any Hindu who does not call in the services of the person claiming those emolumentṣ Therefore, suits of the nature described above cannot be brought now in Bombay by a vatandar joshi.
How customs and practices once prevalent may come to be discontinued or abrogated is well illustrated in the section on Kaliyarjyas Some of those that have a legal bearing have been already discussed above.