LEGAL METHOD AND REASONING

CUSTOM AS A SOURCE OF LAW

GIVEN BY ------- Santhi narayana

IntroductionCustoms have always been an important source of law. The two bones of contention regarding customs in Hindu Law are however:Its validity under the smriti law.Its relevancy to castes and tribes which are not governed by the smriti law.Because of the working women belonging to the lower strata of the society, the various castes and tribes had relatively more woman oriented inheritance laws as opposed to the higher castes where women mostly just maintained the household. This is the reason why the efforts were at first made to make laws uniform across Hindu Law.

Western Jurists

In the evolution of the human society, it appears to be beyond doubt that custom arose first, law came later. Law denotes a more definitive organisation of human society with some kind of power structure established. Customs arise whenever a few human beings come together, as no association of human beings can exist permanently without adopting consciously or unconsciously, some definite rules governing reciprocal rights and obligations. [Vinogradoff, Collected Papers 420. As Paton observes, “Indeed custom is coeval with the very birth of the community itself”. Jurisprudence 143 (2nd ed. 1951). Even a primitive tribe may have a legal order long before it has developed a state (1941) 55 Harv. L.R.. 66-7]. It also looks to be axiomatic that, to start with, law was built upon custom. One example which immediately comes to mind is that of the English common law which in its origin was built upon custom and which later absorbed into itself the customs of the mercantile community to give to the common law world the modern Mercantile Law. [Paton, Jurisprudence 148 (2nd ed.1961). "Mercantile Law, perhaps, provides one of the most interesting examples of custom". Keeton, The ElementaryPrinciples of Jurisprudence 77, 81 (2nd ed. 1949)]. The Twelve Tables of Rome were based upon customs of the people [Maine, Ancient Law 18(1946)].

Custom is regarded as a source of law by the Western jurists, though they assign importance to it to a varying degree depending upon their approach and outlook. Austin having defined 'law‘ as the command of a political superior or definite human authority addressed to political inferiors and enforced by a penalty or sanction, held that custom becomes a law only when it receives judicial or legislative recognition.

Article 13(1) of India’s Constitution provides that when the Constitution entered into force, all previous laws that were inconsistent with the Constitution were considered void.[1] The Constitution defines “law” to include “ custom or usage having in the territory of India the force of law.”[2]  The Courts of India have recognized custom as law only if the custom is (1) “ancient or immemorial” in origin, (2) “reasonable in nature and continuous in use,” and (3) “certain.”[3]  The Courts have interpreted “ancient or immemorial” to mean that for a custom to be binding it “must derive its force from the fact that by long usage it has obtained the force of law.”[4]  A custom also “derives its validity from being reasonable at inception and present exercise.”[5]  Lastly, a “certain” custom is one that is “certain in its extent and mode of operation” and invariable.

Austin's definition of law, nevertheless, holds that courts do not proprio motu for the time make custom a law, that they merely decide as a fact that there exists a legal custom about which theremight have been some question up to that time, just as there might be about the meaning and interpretation of an Act of Parliament, and the observance of a custom is not the cause of law; butis evidence of its existence

According to Austin, nothing is entitled to the name ‘Law’which does not possess all the attributes of state-created and state-enforced law and so, on this approach, logically, one shall have to say that customary law is not law at all, or that it is 'imperfect' or 'inchoate' law.

Hindu View of Custom

Custom has always been given a very important place as a source of law by the Hindu Jurists. Two views have prevailed regarding the relative value of custom vis-a-vis the sruti and smriti. The Dharmashastra writers subordinated customs to sruti and smriti which were given a higher authority. Thus, according to Gautam, dharmas (customs) of countries, castes and families, which are not opposed to Vedic scriptures, are authoritative and binding. Manu and Yajnavalkya declare that sources of Dharma are sruti, smriti and sadachara in that order. Apararka held the view that a custom repugnant to any 'clear' text of ' Vedas' is to be rejected. Mitakshara, Dayabhaga, Mayukha also place custom as subordinate to sruti and smriti. This, however, was not the unanimity of opinion. There were dissenting voices against the view of subordinating custom. Visvarupa, Medhatithi favour the view that prescriptions of smritis (and even of sruti) need not be observed when they are vehemently condemned by the people (e.g. niyoga, though sanctioned by the texts, are, nevertheless, abhorred by custom) [Vrihaspati, Narada, Asahaya were in favour of unqualified acceptance of custom even when they were in conflict with thewritten laws.

Conclusion

As was observed, a system of property ownership by women seemed to have been an integral and significant part of the ancient moral, ethical and legal socio norms. Due weightage was granted to this subject in Sanskrit scriptures as was evident from the Dharmasashtras and Dharmasutras. It did appear that patriarchal collusions constantly undermined the scriptural dictates of the dharma of stridhan. At each time the smritikars, with great effort, brought the emphasis back to women's ownership of property and in the process also expanded its scope. There seemed to be a constant tussle between the smriti dictates and patriarchal subversions within the family. The Hindu Succession Act of 1956 strove to remove this discrimination as is evident from the fact that prior to the codification of the Succession laws in the Hindu Succession Act in 1956, the womenfolk in a family, held only two kinds of property - stridhan and woman's estate. However after the codification, all the discrepancies in the laws of various schools were abolished and the females were granted the right to ownership of all property acquired or possessed under a will, gift, award, document or a decree of a court prescribing limited estate before and after signing of the Act, abolishing their “limited owner” status. Whatever she has obtained or acquired legally before or after commencement of the Act, became her absolute property and she became the absolute owner.

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