NATIONAL LAW UNIVERSITY ODISHA

LEGAL HISTORY

Project Topic

Customs and their application in various Laws

Submitted to:

Mr. Abhay Kumar

(Assistant Professor of Law)

Submitted by:

Mohit Khetan (15bba034)

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 TABLE OF CONTENTS

1. Acknowledgement3

2. Introduction...4

3. Research Question5

4. Research Methodology...5

5. Body of Research..5

6. Conclusion13

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 ACKNOWLEDGEMENT

Project work is an art of managing things in a different way which involves brainstorming and a
bunch of research activities. It is not possible without the help and guidance of a mentor. A major
research project like this is never the work of anyone alone. The culmination of the project could
not have been possible without the contribution of so many people who are sincerely valued.

Firstly, I would like to express heart full indebtedness and deep sense of gratitude to my subject
teacher Mr Abhay Kumar as his input was crucial for understanding the basics of the project. We
likewise like to thank our family and acquaintances as an aspiration and their wishes were always
a guiding light for us.

And finally, we thank Almighty God, the source of all knowledge, understanding and wisdom.

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 INTRODUCTION

Custom is defined as an action or a way of behaving that is usual and traditional among the people
in a particular group or place or something that is done regularly by a person.1 In law is the built
up example of conduct that could be unbiasedly checked inside a specific social setting. A claim
can be carried out in defence of "what has always been done and accepted by law." Related is the
idea of prescription; a right enjoyed through long custom rather than positive law.2

The law is for the society. It is, simply put, a set of rules and regulations to govern a society. Law
of each and every states are different from other depending upon its personal needs and
expectations. This is because of the culture and customs of a particular State. Since law is for the
society, it cannot overlook the various old age traditions pervasive in its way of life which have
appeared as law among the general population following them, however they might be conflicting
with the existing laws go by the modern society. Law, which has been derived from these traditions
is the customary law. A Custom is the arrangement of guidelines followed by a gathering of people
or family or group since long, applicable to them in such a way as to form the law of the society.

1. Some of the customs is recognized by the law and are allowed to be followed by a particular
community for whom it is applicable, even though it is not in consonance with the Statute.

2. Various other customs are incorporated in the Statute by itself and takes the form of a valid law.

3. Some of the customs which are detrimental to the needs and expectations of the society are
disallowed.

Customary law is found majorly in areas of marriage, property, inheritance. 3

1
http://www.merriam-webster.com/dictionary/custom
2
The Free Dictionary by Farlex. Accessed: June 28, 2014.
3
https://www.quora.com/What-are-customary-laws

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 RESEARCH QUESTIONS

What is the relationship between the Law and Custom?

What are the various types of Customs and its application in law?

RESEARCH METHODOLOGY

This research is primarily doctrinal in nature. We have used both analytical and descriptive way
of researching. For the purpose of the research we have used both primary and secondary
resources. The mode of citation followed in this research is 19th Blue book citation.

BODY OF RESEARCH

In spite of the fact that custom is not the same as law, it doesn't mean, in any case, that they are
posts separated. Both complement and supplement each other. Certain practices which were once
performed unwittingly are presently intentionally defined. As indicated by Maine, a law is
always needed to alter itself to social necessities and social feelings. Customary law is the
composed and unwritten principles which have created from the traditions and customs of
society.

For traditions and conventions to be considered as a law, they should be:

Known to the society,

Followed by the society, and

Enforceable (ready to be carried out)

At the point when a law communicates the ethical agreement of the general public, it will be
effectively authorized. In the event that it is not supported by firm moral agreement, compelling

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implementation is less likely to take place. Law separated from custom will undoubtedly become
artificial which would not be truly seen by the general population.4

Take the instance of SARDA Act forbidding marriage of the children. This Act is regarded by
the general population more in breach than in recognition. A law which does not give official
endorse to traditions loses a specific drive of assumption which traditions have behind them and
which help in acquiescence.5 Edmund Burke said, "Manners are of more importance than laws.
Upon them in great measure the laws depend.6

The law touches us however here and there, behavior are what sooth or vex, purify or corrupt, lift
up or degrade, barbarize or refine us by a consistent, relentless, uniform, apathetic operation,
similar to that of the air we take in." Customs unite law and encourage its practice. On the off
chance that the law is not sided by the tradition and custom, it will fail. As the American James
Wilson composed, "Of all yet suggested the mode for the promulgation of human law by custom
seems the most significant and most effectual. It involves in its internal evidence of the strongest
kind that the law has been introduced by common consent and that this consent rests upon the
most solid basisexperience as well as opinion."

This method of declaration focuses to the most grounded normal for freedom and in addition of
law. For an assent in this way basically given more likely than not been given in the freest and
most impartial way." Laws which are not upheld by customs have little chance of being
implemented. Unquestionably a law can't succeed for all time in the event that it is contradicted
by profound situated standard dispositions. Custom plays an important role in the framing of law.

The 'common law' of England is solely in light of custom. The passing of law against specific
practices can be compelling when the mores fundamental to those practices are currently

4
http://www.yourarticlelibrary.com/essay/relationship-between-law-and-custom/24295/
5
https://polsci101.wordpress.com/2009/12/15/mill-burke-custom-vs-change/
6
http://www.heinonline.org/HOL/Page?handle=hein.journals/trygs25&div=12&start_page=89&collection=journals
&set_as_cursor=12&men_tab=srchresults

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disintegrating and an extensive number of individuals no longer hold to them since then it is for
the most part a matter of driving the hesitant ones to acknowledge the new legal way.7

Pretty much as custom supplements law so law likewise supplements custom. Law works as an
instructor. It makes a moral agreement where none exists. Today law is being utilized to change
out of date customs like untouchability, child marriage, dowry system and so forth. In the
primitive society, custom all around served to direct the lead of life, yet in advanced urban-
modern social orders traditions get to be obscured and are tested by recently rising loyalties and
interests.

The custom turns out to be less a rule for the conduct, sets limits less, where men are inspired
less within family and regional group as by shared interests inside secondary group control.
Today law takes a huge part in absolute social control. There are a few reasons behind it. Firstly,
custom does not have an organization of authoritative jurisdiction because of which the interests
of the, group don't remain completely secure. Law with exceptional agency of implementation is
required if interests are to be sought after in peace. Also, it is a weakness of custom that it can't
adjust promptly to evolving conditions. Being altered and lasting traditions change gradually.
Social necessities are dependably ahead of time of custom. Hence, to meet the social necessities
and for speedy adjustment to changing conditions another sort of code is requested; a code which
does not gradually advance but rather one which is made explicitly for the circumstance. Along
these lines with the happening to rail roads and autos it was impossible for their regulations to be
exclusively as far as the old traditions in light of the fact that these did not give particular tenets
to meet the new circumstance made by the new situations.

Subsequently an entire arrangement of law sprang up in each nation to manage themthe

clearest illustration being the arrangement of traffic principles governing autos. The general
public turned out to be so intricate and the gadgets were new to the point that consider control
got to be fundamental.

7
https://www.law.msu.edu/indigenous/papers/2006-04.pdf

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Thirdly, since there are distinctive customs of various groups, in this way, to have a solitary and
uniform rule of behaviour where it is alluring, it is important to supplement custom by law for
instance, the need of a uniform civil code is currently being felt in India. Despite the fact that the
issue is being taken a gander at from a political point by various political gatherings.

The above reasons clarify the development of law into the voluminous codes of present day
states. The body of law in each state is continually being expanded. Present day advancements in
the economic field have occasioned tremendous expansion to law all around. To be sure the
development of law is enormous to the point that a common resident is bewildered when defied
with its size and many-sided quality and his expanding reliance upon the legal advisor.

Custom, as a wellspring of law, sits uneasily with the positivist lawyer. At the point when the
judge applies standard guidelines, the need of composed law is addressed and, with it, so is the
separation between the making of the lawful principles and their application. In numerous
legitimate frameworks, be that as it may, there are a few territories where, without any written
law, customs are perceived as the important source of law. Subsequently custom is a permanent
subject to debate, bringing up the issue of how to accomplish the interpretation of factual
situations into law. Nations which were, or still are, under pilgrim inuence are portrayed by the
conjunction of the foreign made govern with the local legitimate framework, regularly called
'customary law'. There, custom is essentially the non-written law of local individuals. In India
rst the Mughals, then the British added their regulations to the local customs and to the
Brahman tradition without destroying each other. In this manner, in India, old standards of
equity, traditions and western foundations coincide in an uneasy legitimate pluralism. For some
individuals, customary law is the most important law in their lives, controlling aspects of their
lives like their marriages, their property, and their entitlement to inherit. Be that as it may, some
standard laws segregate and make individuals helpless. Standard law:

Gives women less power as compared to men.

Has existed without being effectively challenged for quite a while.

Continues to unjustifiably discriminate between families on the basis of their status in the
family and their sex.

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CUSTOMARY INHERITANCE LAW

Under customary law rules of inheritance, the oldest son inherits the control of the family property,
and makes the decisions about the property. The wife does not inherit the family property, although
she may use it.

Rules of customary law allow for inequality among people to continue, especially for women and
girls, who remain economically and socially inferior to men. This makes women dependent upon
relationships that may, at the same time, put them at risk for HIV. It also may force them into
situations of vulnerability like sex work.

The Practice of Sati or Widow Burning, which was abolished in 1829 by Robert Macaulay in the
British India, is still prevalent in certain districts of Rajasthan and some other places in India. Its
a kind of customary practices which restricts the rights of the women in the society.

In Abdul Hussain Khan v. Bibi Sona Dero, the Privy Council stated that "custom binding
inheritance in a particular family has long been recognized in India; although such a custom is
unknown to the law of this country (i.e., England) and is foreign to its spirit. Though the
members of a Hindu family cannot by agreement impose a custom for devolution of property, if
for a long period of time a particular mode for the devolution of property prevails in a particular
family, the courts recognize it. This is very lucidly expressed by the Privy Council in Shiba
Prasad v. Prayag Kumari: A Hindu family, no doubt, cannot by agreement between its members
make a custom for itself of succession to family property at variance with the ordinary law. But
where a family is found to have been governed as to its property by a customary rule of
succession different from that of the ordinary law, that custom itself is law. The rule of
succession in such a case is recognized by the State as part of the law of the family, though it is
no more than the result of a course of conduct of individual subjects of the State constituting the
family.8

The right of the elder or the first born son to receive a larger share of the ancestral property than
his younger brothers. This right, which is recognized by the ancient Hindu law, is of no force
except where family or local custom sanctions it. It may not be authorized by Hindu law, but the

8
http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ktilc16&type=Text&id=117

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custom of granting the eldest born an additional share over and above that of his other brothers is
prevalent in many parts of the country.9

CUSTOMARY MARRIAGE LAWS

The custom of marrying maximum of four wives by a Muslim man has been prevalent in the
Muslim society. This right has been provided to only the men and not the women. A women
cannot marry more than one man which restricts the rights of the women and lead to their
exploitation.

Prohibition of Child Marriage Act: The marriage of a 1-year-old or 10-year-old is valid. The law
only prevents the marriages of children; it does not render them illegal once they actually
happen. According to the UN, this is one of the main reasons why the custom still flourishes in
rural areas.

The married children, however, have the right to declare it void. A woman can call off a
marriage until she turns 20, whereas a man has till age 23.

Varieties of Customs and its application in laws

Customs are usually classified as family custom (kulachar), local custom (Desachar), caste
custom Uatyachara), and customs of tribe or sects. Besides these, there are trade customs and
tenancy customs. A general custom is one that binds all the inhabitants of a country. According
to Section 26 of Bombay Regulation IV of 1827, "the usage of the country in which the suit
arose" is to be the rule of decision in a case in the absence of Acts of Parliament or Regulations
of Government. These words are so general as to allow either a very large or a restricted
application.10 Therefore, in many cases, the expression "a general custom" and the expression "a
local custom" may convey the same meaning.

9
http://www.heinonline.org/HOL/Page?handle=hein.journals/ktilc16&div=9&start_page=105&collection=journals&
set_as_cursor=2&men_tab=srchresults
10
Shidojiran v. Naikojiran, 10 Born. H.C.R. 228 at 231.

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A. Family Custom

A family custom or kulachar is the usage confined to a particular family, such as those
governing succession, adoption, marriage, descent, and devolution of property to impartible
estate, maths, or religious foundations, etc. "To legalize any deviation from the strict letter of the
law, it is necessary that the usage should have been prevalent during a long succession of
ancestors in the family, when it becomes known by the name of kulachar."11 A family usage or
custom, when clearly proved, outweighs the written text of the law." A mere convention or an
arrangement by mutual assent for peace or convenience cannot be recognized as a family
custom. In Myna v. Ooiram, the Judicial Committee observed that "the parties could not by their
agreement give new rights of succession to the law.

Further, under the Hindu law, only a man himself, when he is alive, or his widow after his death
can adopt; no one else can adopt a son.12 But in a Madras case,13 the court held that in the
instance of Nattukottai Chettiars there is a custom permitting an adoption to be made to a person
after his death and after the death of his widow by the father of the deceased. The ground of the
decision was that secular motives are pre-dominant in adoptions effected among Nattukottai
Chettiars, who more often possess considerable property and desire to direct its devolution along
approved channels while at the same time ensuring the performance of religious rites to which,
as Hindus, they also attach value.

B. Caste Customs

The growth of the caste and the origination of different occupations have necessarily caused the
growth of a body of rules for the guidance and preservation of the community, and these rules
have at last crystallized into usages and customs. A caste custom binds all the members of a caste
residing in a particular area. It varies with localities even among the members of the same caste.

But on general matters caste customs agree, even among different cases. For instance, the custom
of expelling a member from the caste for violating a caste rule or committing any offence is to be
found among all castes. The guru (spiritual superior) of the Panchayat or a majority of caste-

11
Sumran Singh v. Kbedum Singh 2 S.D. Sel Rep. 147 (1814).
12
Dhanrajv. Sonibai, 52 l.A. 231, 27 Born. L.R. 837.
13
Kasiviswanthan v. Somasundaran (1943) 1.M.Lj. 195.

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men, sit in judgement upon a delinquent caste-man, and their verdict is absolute and imperative.
The condemned person has no remedy even in courts of justice, unless the decision should be
shown to be not bona fide. In Ganapatti Bhatta v, Bharati Swami, the head or ecclesiastical chief
issued a provisional order of excommunication against the plaintiff for having committed three
caste offences; the plaintiff sued for a declaration that the order passed against him was unjust
and invalid. The court held that the guru had jurisdiction to deal with such matters according to
recognized caste custom and that in view of the provisional nature of the orders and other
circumstances, he had exercised his jurisdiction bona fide; hence the civil court could not
interfere in the matter.14

C. Local Custom

The peculiar law of a country prevailing from time immemorial without conflicting with the
Vedas is called Desachar or local or territorial custom.15 A local custom being exceptive in its
nature must be pleaded with reasonable certainty. It is the lex loci, which, unlike a family
custom, binds all persons within the local limits in which it prevails. Jestangsha is the right of the
elder or the first born son to receive a larger share of the ancestral property than his younger
brothers. This right, which is recognized by the ancient Hindu law, is of no force except where
family or local custom sanctions it. Jestangsha may not be authorized by Hindu law, but the
custom of granting the eldest born an additional share over and above that of his other brothers is
prevalent in many parts of India. This is apparently because of "his services in managing the
family property and in acquiring other property and so increasing the value of the family
estate.16 The right of pre-emption is "a right to acquire by compulsory purchase, in certain
cases, immovable property in preference to all other persons".17 It is essentially a Mahomedan
doctrine, but, since it is suited to the communal life of village communities, it is very widely
extended among non-Mahomedans by local usage. The so-called preemption of Mahomedan law
resembles the Retractrecht (jus retractus) of German law. It is an obligation attached by written
or customary law to a particular status which binds the purchaser from one obliged to hand over
the object matter to the other party to the obligation on receiving the price paid with his

14
http://www.jstor.org/stable/4403076?Search=yes&resultItemClick=true&searchText=customs&searchText=and&s
earchText=its&searchText=application&searchText=of&search
15
Ramkishore v. Jainarayan, 49 Cal. 120 (PC).
16
Manick Chand v. Hira Lal, 20 Cal. 45 at 17 (1892).
17
R.K. Wilson, An Introduction to the Study of Anglo-Mahomedan Law (1921) p. 394.

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expenses. The action, in German, as in Mahomedan law, is exercisable at the moment at which
the property is handed over to the purchaser.

CONCLUSION

Customs is a part of the State which is further disintegrated into different places from where the
customs originate. It plays an important role in the overall development of State. There have been
customs which has been transformed into laws and some of them have been neglected in order to
bring justice to the society as a whole. Certain customs such as the practice of Sati which restricted
the rights of the women has been abolished a long time back. Suppose, if it is still practiced. What
consequences will it have in the society? These types of questions were identified by the tribunals
in a long run and these concepts were transformed or removed. Customs can be of various types
as discussed in the body of research. The courts in India played a brilliant role in the transformation
of the customs and also made certain customs as lex loci over a prolonged period of time according
to the changing scenarios of the society. Customs can be said to be the rule of law which has been
practiced from a long period of time and the society is accustomed to it. The problem is with the
places which is still backward and the practice is seen to be followed in these places. The
discrimination against the women is still prevalent as people are not aware of the law and are
illiterate. At last, it can be concluded that customs and its application in various laws has played
an important role in the proper functioning of the society but not to the fullest which needs a proper
check by the authorities.

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