Hindu Law sometimes finds itself in a state of ambiguity while resolving the disputes pertaining to Hindus. At times, there arises certain situations when it becomes difficult for courts to decide whether, in a particular situation, custom would prevail or the text mentioned in the Smritis would prevail. Such problems do not arise when custom has varied over a period of time, but it arises where when it has been practiced for a long period of time uniformly by a certain community, or a religion to be more specific in present dilemma. Generally, it has been a practice which has been followed by several courts to offer primacy to the customs of texts specified in Smritis.
But, another problem crop up as to how and which customs should get primacy, or could be used as a source of law, and for that matter could be used as a law itself. Now, let us spot the points on which these customs are based, points which are not of cultural important but for legal importance. There are three kinds of customs which can be considered to be of some legal importance and above that importance in resolving critical legal disputed in determining the applicability of these customs.
1. Local Custom
2. Family Custom
3. Class Custom.
It would not be intricate to understand the meaning of these customs separately, nor would it be complex to define these customs in our own terms. “Local Custom” is a custom which is prevalent, and has been followed in a particular area or territory for a long period of time, time immemorial to be more specific, and is not against the morality and legal principles. When we converse about legal principles, we mean principles which are fundamental in governing in any society or a nation and which cannot be overlooked while dealing with any of these customs at any point of time. “Family Custom” is often followed only in a particular family, which makes it difficult for the family members to prove the existence of any such custom as required by the case. It is certainly easier to prove the existence of custom which is prevalent in a particular area or class because it is not concentrated to a particular family. In the same manner, “class custom” is the one followed by a particular class.
Before applying these customs as a source of law, it is necessary to check its authenticity. And, it becomes important to make sure whether the custom has been used for a long period of time which in a way makes it ancient, and is reasonable without arbitrariness and is not in the derogation of the general rules of law present in the society. Let us take an example in order to ascertain whether any custom can be accepted as a source of law or not, and for this purpose let us refer to the practice of “Sati”, which had been followed rampantly by Hindus in ancient period. Reasons for burning a woman with her deceased husband can be many, but none of them can justify their reasonableness by murdering a woman. Right thinking members, at that time, might be of the opinion that woman should not claim their right over the property of her husband and they found “Sati” as an easy mechanism to stub out the claim made by them. Another reason could be the maintenance of the woman after her husband’s death, i.e., who would take care of her, and for that matter who would provide her shelter to live in. These were some of the reasons provided by many of the members of the society, at that point of time, to substantiate the fairness of their act. So, it becomes necessary for the courts not to acknowledge such customs which are based merely on arbitrariness and unreasonableness. Here comes the aspect of public morality and public policy, and clear and unambiguous evidence must be there in order to prove it. It should be unambiguous because by claiming the validity of a custom, one is challenging the provision mentioned in the text, let us say Smritis. While proving its validity, another important aspect would come into light i.e. whether such custom has been followed consistently or there have been various instances when such a tradition has been ignored by the members of the society, then how can such a custom be used as an authentic source of law while delivering justice. In such instances, custom cannot be termed as proved and would not make anyone bind to consider it as an authority. This is one of the problems which have been faced by the courts while delivering right justice to the people.
Moreover, it would be a mandate that such a custom has been formed by the common consent of the society and it would always be a matter of fact while ascertaining its authenticity. It would not be possible for a person to claim anything on the basis of the theory, or by alleging that such a custom has been mentioned in some text. This is because, texts which are considered to be authentic, are already present in the form of Smritis,Vedas etc. And a custom, which is authentic, is always context driven and not theory driven. Another aspect which has to be taken into account while dealing these matters is to inquire whether it was only in recent times that the custom has been followed, and if it has been followed only in recent times, then the court decrees based on such a custom would not serve as a precedent. In the earlier part of the post, family custom has been defined and it would be important to know how and when they could be applied. Customs relating to family has been considered by the court as an authentic source for a long period of time, but proving the existence of such a custom is not only difficulty but also time consuming. But, once proven, it would become obligatory to prove any such custom. But, the burden to prove any such existence would again depend on the person alleging it.
Through this post, it may become somewhat clear as to how and when custom as a source of law can be applied while dealing the cases related to Hindu Law.
"Strike an average between what a woman thinks of her husband a month before she marries him and what she thinks of him a year afterward, and you will have the truth about him. "~H.L. Mencken