Question: ‘Custom and usages that are reasonable, certain, and ancient and have been adopted by a body of persons will be enforced.’ Comment by giving examples from Hindu and Mohammedan Laws. [HJS 1984]  Find the answer only on Legal Bites. [‘Custom and usages that are reasonable, certain, and ancient and have been adopted by a body of persons… Read More »

Question: ‘Custom and usages that are reasonable, certain, and ancient and have been adopted by a body of persons will be enforced.’ Comment by giving examples from Hindu and Mohammedan Laws. [HJS 1984]

Find the answer only on Legal Bites. [‘Custom and usages that are reasonable, certain, and ancient and have been adopted by a body of persons will be enforced.’ Comment by giving examples from Hindu and Mohammedan Laws.]

Answer

Customs and usage, in general, have played a vital role in the evolution of law, but in Hindu and Mohammedan Laws they have special significance. Custom is believed to be based on long-established practices and unrecorded revelations. Its observance has been invariably insisted by ancient writers. Custom in its legal connotation means a rule that in a particular family, class or district has obtained the force of law from long and continuous usage. It must be ancient, certain, reasonable, and continuous.

Where it is found to be in derogation of general rules of law it must be strictly construed. Customs are practices that people follow continuously for a long period and because of that, it becomes a source of law.

Even in modern India the customs are not entirely ignored but they are cherished by the legislation if they are reasonable. Under Indian Constitution Articles 25, 26, and 28 there is an indirect guarantee given for the protection of such customary practices of communities, though they should not be in contradiction to the concept of Secularism and Democratic Socialism

Hindu Jurists such as Manu, Narada, Brihaspati, Katayayana, and Yajnavalkya have given preference and importance to custom and usage and have included them in administrative practices of their time. They believed customs to be sacred of all and to have the power to prevail over all the others, they even considered customs obligatory over the king and made it a duty of the king to include local customs and usages while deciding cases and in administrative practices.

The concept of customs has been generated under Hindu Laws from the Shrutis, Smritis, and Dharmashastras. The teachings given under these texts not only served as the basis of law and policy for ancient times but they have played a major role in the framing of modern laws also. The Privy Council in the case of Bhyah Ram Singh v. Bhyah Ugur Singh, 13 M.L.A. 373, 390, has clearly stated that

“The Digest (Mitakshara) subordinates in more than one place the language of texts to custom and approved usages”.

Whereas under Muslim Law the Muslim Jurists have somewhat different opinions about customs but have similar significance for them. The sources of Muslim Laws are the Koran which contains the word of God, Hadis or traditions that are inspired from the utterance of Prophets, Precedents from his acts, Ijma which is the consensus, Urf or customs, and Kiyas.

The customs are secondary sources of law under Muslim law. Nonetheless, they have included the practices of different classes of Islam and have separate customary laws for each section.

Hedaya has mentioned,

“customs does not command any spiritual authority like that of Irma of the learned, but a transaction sanctioned by custom is legally operative, even if it violates a rule of law derived from analogy, it must, not, however, be opposed to a clear test of Koran or an authentic tradition”.

Realizing the importance of customs and usages, the Privy Council in Collector of Madura v. Motto Ramalinga, (1868) 12 MIA 397 one of its decisions clearly stated that “a clear proof of usage will outweigh the written texts of law.” So there are two important conditions of custom, first, it should be continuous, and second, it should be there without any influence. In Indian Laws, the personal laws that are Hindu and Muslim Laws are mostly based on customs and customary laws.

During the British Administration customs became an important source and were given a place of honor in the administration of justice. The rules of 1772 and 1793 laid down the guideline that courts should apply the respective personal laws in the matter of Hindus and Muslims.

The Act of Settlement, 1781, provided for the application of the laws and usages for the matters of inheritance and contract among Hindus and Muslims. Customs were given preferences over the religious matter and it seemed a just and reasonable approach at that time.

After independence social reforms and codification of laws, for the sake of uniformity changed the perspective of administrative authorities towards customs. The old practices which were inconvenient and unnecessary were required to be removed with the interference of the state.

Before Independence acts such as The Hindu Widows’ Remarriage Act, 1856, the Child Marriage Act, 1929, the Hindu Women’s Rights to Property Act, 1937, and the Hindu Married Women’s Rights to Separate Residence and Maintenance Act, 1946, were passed to nullify the orthodox and inconvenient customs. After 1947 the government took drastic steps and other laws were also introduced to preserve reasonable customary practices and annul the unreasonable ones.

Indian Parliament for the sake of the same has enacted the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act 1956, the Dowry Prohibition Act, 1961, etc. for customary laws of Hindus.

Under Mohammedan Laws the situation is different. The laws are based the customary practices and are a product of long practices only. In the case of Abdul Hussain v. Bibi Sona Dero, (1918) 20 BOMLR 528 Plaintiffs claimed property based on the custom that in their family women were denied inheritance if married. The judges were convinced that the custom was prevalent and gave the judgment which preferred custom to the Islamic law of Inheritance.

The first step toward modifying the customary practices into reasonable and acceptable laws was the enactment of the Shariat Act, 1937. The Dissolution of Muslims Marriage Act, 1939 was another landmark in the process. However, most of the Muslim Law is still governed under old customary practices only. In the case of Mohd. Ahmad Khan v. Shah Bano, AIR 1985 SC 945, the need for modification of old customary practices and laws was mentioned.

The government has adopted and converted the customs and usages into laws that are responsible, certain, and ancient, and has removed those which are unnecessary.


Updated On 2022-08-24T05:16:13+05:30
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