Discuss the importance of custom as a source of Hindu law. How far custom forms the basis of modern codified Hindu Law.

Question: Discuss the importance of custom as a source of Hindu law. How far custom forms the basis of modern codified Hindu Law. [BJS 2006]

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Answer

Custom in its legal connotation means a rule that has formed a long and continuous usage of force law. In simpler terms, these are the traditions that have been followed by ancient times, under the observance of elders. These are believed to be based on long-established practices and unrecorded revelations.

Customs are a principal source, and their position is next to the Shrutis and Smritis, but usage of custom prevails over the Smritis. It is superior to written law.

Custom is regarded as the third source of Hindu law. From the earliest period, custom (‘Achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee, custom signifies a rule in a particular family or class or district has obtained the force of law from long usage.

Classification

Under Hindu Law and as per Indian Courts, customs are classified into four categories-

1. Local Custom: These customs are certain practices and usages that are binding on the basis of the geographical limits of inhabitants. It is undoubted that a custom derives its force from the fact that it has been used in that area and obtained the force of law as it was laid down by Privy Counsel in Mst. Subhani v. Nawab, (1941) 43 BOMLR 432.
2. Class customs: The term class custom denotes certain practices and usages of a caste or of a sect or followers of a particular profession or occupation.
3. Family customs: Where certain practices and usages are established by long users in a particular family, they are termed as family customs. Such customs may relate to modes of marriage ceremonies, Jethansi, succession, impartible estate, Maths, and religious foundations.
4. Guild customs: These are the customs that are followed by the traders.

Importance of Custom as a source of law and the basis of modern Codified Hindu Law

Under the Ancient legal systems, customs played a very significant role. The sole basis of law and justice in that era were the practices that have been passed along from generation to generation. The customs were predominant in achieving administrative stability and justice. They were the only means of maintaining social conduct in the absence of any rule-making body.

Under Hindu jurisprudence, the customs acted as the backbone of all the ancient religious texts and all the regulations made since then. The customary practices were binding in nature at that time as they were valued. Those practices, with time and adaptations, became the words of sages and acted as a binding force on the basis of religion. The religious texts under Hindu law are considered a product of the customary practice of those times.

Customs and customary laws are recognized as an important source of law in the Indian Legal System. Article 13 of the Indian Constitution defines law to include custom and usage in it. The Hindu codified laws are themselves derived from long-run customary practices only. The laws relating to inheritance, property, etc., are derived from customary practices. Many of the Indian Laws have traces of ancient customs in them.

Customs are reflected in most of the codified Hindu Laws. After independence, various Hindu Laws were codified, such as Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), etc. All of these Acts are codified customs that evolved with the needs of time and society. The codifications of these customary laws provided a clear understanding of the purpose of administration and justice. The laws relating to marriage, the share of property, inheritance, and even the laws relating to maintenance are derived from customary practices.

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