Custom as a Source of Hindu Law
Definition and Importance of Custom
In Hindu law, custom is recognized as one of the most ancient and authoritative sources of legal rules. Even prior to the codification of Hindu personal laws, customs governed the personal, social, and religious life of Hindus.
Local, Family, and Commercial Customs
1. Local Customs
These are customs specific to a geographical region, village, or community. They may govern matters like succession, marriage rituals, or partition. For instance, in some parts of Himachal Pradesh, polyandry was practiced and protected as a local custom.
2. Family Customs
These are customs followed by a particular family over generations. An example is a family consistently performing marriage rituals without the traditional saptapadi but recognized within the family tradition.
3. Commercial Customs
These apply in mercantile contexts. For example, certain business communities follow customary practices in partnership, lending, and interest payments, recognized even in courts under personal law applications.
Illustrative Example:
Example 1. In a family, marriage ceremonies were traditionally conducted without the presence of fire (Agni). The family has followed this practice for over 100 years. Can this be recognized under Hindu law?
Answer:
Yes. If the family custom has been consistently practiced, is not against public policy, and is reasonable, courts may recognize it as a valid marriage custom under Hindu law.
Conditions for Validity of Custom
Must be ancient, continuous, reasonable, and not opposed to justice, equity and good conscience
For a custom to be legally recognized in Hindu law, it must fulfill several essential conditions. These conditions ensure that customs are not arbitrary, discriminatory, or unjust.
1. Antiquity (Ancient)
The custom must be in existence for a long time, traditionally considered to be since time immemorial or at least 40 years, as per judicial practice.
2. Certainty and Continuity
It must be clear, unambiguous, and followed consistently and continuously without interruption.
3. Reasonableness
The custom must be rational, fair, and not arbitrary. Unreasonable customs cannot be upheld by courts.
4. Not Against Morality or Public Policy
Any custom that goes against justice, equity, and good conscience will be declared void by courts. For example, customs discriminating against women in inheritance may be struck down.
5. Not Abrogated by Statute
Even valid customs cannot continue if a specific law explicitly overrides or nullifies them (e.g., after the Hindu Succession Act, 1956, discriminatory inheritance customs lost validity).
Illustrative Example:
Example 2. A community has a custom that only male members can light the funeral pyre. Can this be enforced against a woman who wishes to perform her father’s last rites?
Answer:
No. Courts in India have held such customs as violative of gender equality and opposed to public policy and morality. Therefore, such customs are invalid even if ancient.
Custom vs. Statutory Law
With the codification of Hindu personal laws in the 1950s, including the Hindu Marriage Act, Hindu Succession Act, and Hindu Minority and Guardianship Act, the role of custom has been substantially limited.
General Rule:
Customs are subordinate to statutory law. If a valid statute exists on a particular subject, it prevails over any conflicting custom.
Judicial Viewpoint:
Courts recognize that:
- Statutory law represents public policy and uniformity.
- Customary laws may continue only if explicitly saved by legislation.
Examples where Statute Overrides Custom:
- Hindu Succession Act, 1956: Overrode the custom of sons-only inheritance; now daughters have equal rights.
- Hindu Marriage Act, 1955: Mandated saptapadi and registration in certain cases, superseding contrary customs.
Illustrative Example:
Example 3. A community follows a custom where widows cannot inherit property. Can this custom be used to deny a widow her share after the death of her husband?
Answer:
No. Such a custom is inconsistent with the Hindu Succession Act, 1956 which grants the widow full rights as a Class I heir. Therefore, the statute will override the custom.
Religious Usages and Their Legal Recognition
Religious Usages and Their Impact on Law
Religious usages refer to those practices, rites, and ceremonies which arise from religious belief and are observed by communities over time. In Hindu law, these usages hold quasi-legal authority and influence personal laws related to marriage, succession, adoption, etc.
Legal Recognition of Religious Usages
Indian courts have consistently recognized the importance of religious usages, provided they meet certain legal standards. The Constitution of India under Article 25 guarantees the freedom of religion and the right to manage religious affairs.
Key Principles for Recognition
- Usage must be ancient, certain, reasonable, and continuous.
- It must not violate any statutory provision or constitutional morality.
- Courts examine whether the usage is integral to the religion or merely a tradition.
Examples of Recognized Religious Usages
- Saptapadi as an essential ceremony in Hindu marriage.
- Custom of varna-specific rituals in temple worship.
- Pind daan (ritual offerings to ancestors) as a religious duty under Hindu belief.
Limitations
- Practices violating fundamental rights are not protected.
- Customary practices like devadasi system and triple talaq have been invalidated.
Illustrative Example:
Example 1. A Hindu man claims exemption from marriage registration based on religious usage in his community.
Answer:
While religious ceremonies are recognized, they do not exempt registration requirements where legally mandated. Religious usage cannot override statutory law.
Religious Trusts and Institutions
Religious trusts and institutions play a significant role in the administration of temples, mathas, mutts, and other spiritual centers in Hinduism. Their operations are governed by both customary practices and formal legislation.
Legal Status and Governance
These institutions are legally recognized and are often administered under specific state laws, like the:
- Hindu Religious and Charitable Endowments Acts of various states
- Indian Trusts Act, 1882 (where applicable)
Key Legal Features:
- Can hold and manage property for religious purposes.
- Must utilize income for religious, educational, and charitable objects as defined in the trust deed.
- Subject to state supervision and public audit.
Role of Shebait and Mahant
Shebait (in temples) and Mahant (in mathas) are the human managers or custodians of deities and religious properties.
Legal Duties of a Shebait:
- Manage temple rituals and funds.
- Maintain accounts and ensure proper utilization of donations.
- Act in the interest of the deity, who is the juristic person.
Rights and Liabilities:
- These institutions have juridical personality (especially idols in temples).
- Courts recognize the right to file suits in the name of the deity.
- Mismanagement or misappropriation invites court intervention and removal of trustees.
Illustrative Example:
Example 2. A matha in Tamil Nadu refuses to share financial records claiming religious autonomy. Can the state intervene?
Answer:
Yes. While religious autonomy is respected, financial transparency and accountability are mandatory. Under the Tamil Nadu Hindu Religious and Charitable Endowments Act, the state can inspect, audit, and take corrective measures.