Customary Law and Personal Law

On the intersections of identities, Amartya Sen lucidly puts it, “The crucial need to take note of the plural identities ofpeople and their choice ofpriorities survives the replacement of civilizational classifications with a directly religious categori­zation”.¹⁹ Thus, identities can never be seen in vacuums.

India has a vast socio-religious and geopolitical diversity owing to India’s rich heritage of multiculturalism and being home to major religions — in fact four major religions, viz. Hinduism, Buddhism, Sikhism and Jainism, emerged from India. These diversities, of various natures and degrees, inevitably have impres­sions over the history of law in India.

A well-recognized principle of jurisprudence is that the State is not the only source of law. In both Hindu and Muslim jurisprudence, the importance of cus­tom has been well acknowledged. If we go back to the early history of the sub­continent, besides religious groups following their different religious laws, the presence of customs and usages acquiring the status of law in different parts of the country is historically prevalent.

After initial ignorance towards the customary law, owing primarily to the imperialistic approach, the colonial administrators acknowledged the importance of customs and usages statutorily.²⁰

The Bombay Presidency, Regulation IV of 1827 assigned precedence to custom over the personal law. The object of Sec. 37 of the Bengal Civil Courts Act (XII of 1887), and the old regulations was to make it clear that the Muhammadans were not to be governed by the English law, and the personal law of the Muhammadans was left intact. Sec. 37 did not preclude a party from proving a custom at variance with the Muhammadan law. Such custom could be proved in the Punjab and in Oudh. The colonial state, after the annexation in Punjab (1849), had to make a declaration that “native institutions and practices shall be upheld as far as they are consistent with the distribution of justice to all classes” considering the region of Punjab, particularly the rural areas, were inhabited by various tribes following various customary laws.²¹ Consequently Section 5 of the Punjab Laws Act, 1872, laid down the precedence of native law over Hindu and Muhammadan law regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution.

In the year 1868,²² while deciding a Hindu religious endowment right of suc­cession, the Privy Council stated that “the duty, therefore, of an European Judge, who is under the obligation to administer the Hindoo Law, is not so much to enquire whether a disputed doctrine is fairly deducible from the earliest authori­ties, as to ascertain whether it has been received by the particular School which governs the district with which he has to deal, and has there been sanctioned by usage. Under the Hindoo system of law, clear proof of usage will outweigh the written text of law.” In 1869,²³ in relation to Hindoo laws, again the Privy Council stated that “where a custom is proved to exist, it supersedes the general law...”.

In the year 1847,²⁴ the Bombay Supreme Court upheld the practice of Hindu customs of inheritance and succession for Khojas²⁵ and Cutchi Memons²⁶ over Muslim law. Much later in 1913,²⁷ in a suit by a Muhammadan lady against her brothers for recovery of her share in their father’s property, the defendants hav­ing set up the plea that according to family custom female descendants could not inherit in the presence of male descendants, the courts in India refused to admit evidence in support of the alleged custom on the ground that evidence of custom at variance with the ordinary rules of Muhammadan law was inadmissible in regard to matters, mentioned in Section 37 ofthe Bengal, N.W.P and Assam Civil Courts Act. Reversing the lower courts, the Privy Council held that evidence with respect to the issue as to family custom should be admitted.

In a case in 1922,³⁰ the parties to the litigation were Lubbai Muhammadans of the Sunni sect residing in the district of Coimbatore in the Madras Presidency; the question was whether succession to the estate of a deceased member of the sect was governed by Muhammadan law or by a rule of descent excluding females. The Privy Council stated that “The litigants are Muhammadans to whom this Act applies so that prima facie all questions as to succession among them must be decided according to Muhammadan Law”. It clarified that in India, however, custom plays a large part in modifying the ordinary law, and it is now established that there may be a custom at variance even with the rules of Muhammadan law, governing the succession in a particular community of Muhammadans. But the custom must be proved.

The history of customs taking precedence over personal laws in the subconti­nent thus have often been misused in depriving property rights to women. With the Muslim Personal Law (Shariat) Application Act, 1937, specific legislation directing courts to apply Muslim law in matters of intestate succession, special property of females, etc. (see Section II) was brought into existence. Any custom that merely excludes women from inheritance has been done away with.³¹ It is interesting to read the statement of objects and reasons of the Shariat Act of 1937 which records³² that the reason of bringing this legislation was that all Muslim women organizations condemned customary laws and demanded that Muslim Personal Law should be made applicable to them.

The importance attached to customs, particularly in the subcontinent, given the intersections of various identities, can neither be denied nor be reduced.

The Calcutta High Court³⁵ has stated that the personal laws of the parties to the marriage would mean ‘customary law of the class to which such person belongs’. This is a generalised observation and at least, to the extent of Islamic Personal Law, this observation is incorrect. Various practices of conducting and terminating marriages can be a matter of custom prevailing amongst a common class of persons belonging to a religion or a tribe that does not follow any major or commonly known religion. Those customary practices may be consistent and followed strictly. Hence, all customary practices can’t be understood to be part of ‘personal law’.

Under the Hindu system of law, clear proof of usage will outweigh the writ­ten text of the law.³⁶ The specific legislation, as codified in terms of the Hindu Marriage Act, 1955, itself makes the Act inapplicable for a very large section of people who may be Hindu in their religious belief but still the mandate of the Act is not applicable for them. Section 2(2)³⁷ of the Act states that the provisions setout therein shall not apply to Scheduled Tribes within the meaning of Clause 25 of Article 366.³⁸ Secondly, in terms of Section 29(2),³⁹ the Act gives a general exemption to all those who may be Hindu but the provisions under the Act shall not affect any recognized custom or any local special laws (which may also be contrary to this Act). The rights of an exempted Hindu under Section 29(2) can be illustrated with the judgment of a High Court⁴⁰ wherein an approved custom of divorce has been held to be valid. In this case the custom was that if a wife leaves her husband and elopes with another man, the second husband returns the marriage expenses and bride price incurred to the former husband.

In relation to succession of property, the Hindu Succession Act is not appli­cable to various tribes having Hindu belief systems. This fact has been recorded in Madhu Kishwar’s case.⁴¹

Even today, unlike matrilineal practices among Nayars and Ezhavas of Travancore who were attacked as “non-Hindus” and thus radically transformed or ruined, Mappila Muslims retained a matrilineal kinship structure by placing reliance upon customary practices and utilising institution of waqf.⁴² The Garo and Khasi tribes of Meghalaya are matriarchate too. Among these tribes, the son-in-law comes to live with his wife’s parents.⁴³ The Portuguese Civil Code remains in force in the territories of Goa, Daman and Diu along with the codes of native customs and usages. Neither the Shariat Act nor Hindu codified laws of 1955—56 are applicable. Hindus are governed by the unreformed Shastric Hindu law on marriage, divorce, adoption and joint family.⁴⁴ Muslims of Goa are gov­erned by Portuguese law as well as Shastric Hindu law.⁴⁵ In Puducherry, all the central family laws extend with a rider that they would not apply to the “renon­cants”, i.e. the native population that opted for the Code Napoleon of 1804 and not personal laws during the French rule — before the territory’s merger into the Union of India.⁴⁶ As of late 2019, Jammu and Kashmir remained excluded from the central laws vide Article 370 of the Constitution, overriding the applicabil­ity of central family laws.

Furthermore, the sixth schedule of the Constitution of India provides pro­tections to tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram whereby vide certain provisions complete autonomy on matter of family law is provided. These matters can also be adjudicated by the local panchayats following their own procedures.⁴⁹ Notably, the sixth schedule, which provides for autono­mous districts and autonomous regions, provides legislative competence to these district councils and regional councils. Theses councils are competent to deal with subjects like inheritance, succession, marriage and divorce. Interestingly, the special provisions are not only confined to the domain of interpersonal mat­ters but rather stretch over the arena of the administration ofjustice too. These councils are competent to frame rules to lay down the procedures for trial of suits and criminal cases and for execution of orders/judgments. It’s a known fact that the Hindu Marriage Act prohibits marriages amongst close relatives. However, these marriages are considered auspicious among the Hindus of the Southern part of India. These customs are taken care of by Hindu Acts recognizing customs of different Hindu communities. Naturally, even after codifications, all Hindus are also not governed by one law.

III.