CUSTOM: A TRANSEDENT LAW

WITH SPECIAL REFERENCE TO IDNDU LAW & MUSLIM LAW

Dr. Manju Koolwal*
Custom:
When human beings came to live in groups, it was but natural that they
should, for harmonious group-life, conform to certain patterns of human
behaviour. By experience man learnt that a particular mode ofbehaviour or conduct
was conducive to collective living. In course of time a pattern of behaviour
emerged, and by consistent adherence to it, it achieved spontaneous and
conscious following by the members of the group. When this stage is reached,
the pattern of human behaviour is called usages. As Many puts it, "A belief in
the propriety ofthe imperative nature ofa particular course ofconduct, produces
a uniformity ofbehaviour in following it; and a uniformity ofbehaviour in following
a particular, course of conduct produces a beliefthat it is imperative or property
to do so. When from either cause or from both cause, a uniform and persistent
usages has moulded the life and regulated the dealing of a particular class of
community, it becomes a custom.
In all societies whether of the west or east, developed or undeveloping,
primitive or modem custom has enjoyed a respectable place in varying degree
in the regulation ofhuman conduct. It has been considered as the outward expression
of latent principles ofjustice, social values and fundamental.
In Sanskrit there are three terms Achara (rules relating religious observances)
Vyavahara (the rules of civil law) and Sadachara (the usage of virtuous men).
The word Sadachara1 therefore, has been used for custom, which means the
custom, handed down in regular succession from times immemorial among the
four chiefcastes (Varna) and mixed races ofthe country. Accordingly Sadachara
or approved usage only means that it should not be contrary to Dharma. According
to Webster 'Long established practice considered as unwritten law and resetting
for authority on long content; a usage that has by long continuance acquired a
legally binding force'. As such 'custom' is not to be understood in the sense of
'usage' which is also based on long practice but has not acquired binding or
obligatory character. Nor a usage can be exercised as of right inhering in one
individual and binding on the other against whom such usage is claimed. Salmond
says 'Customary law is that which constituted by those customs which fulfil the
requirements laid down by law as the condition oftheir recognition as obligatory

* LL.M. Ph.D., Asst Professor, Department of Law, University of Rajasthan, Jaipur

1 Quotted by Mayne on his classic work on Hindu Law and Usage 61 (Ed. Aiyer (1953).
2 New International Dictionary 650 (1957).
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rules of conduct' . Hence a legal custom can be easily distinguished from social
customs and general user in the sense the former is obligatory, binding
accompanied with sanction while the latter ones are merely the norms of social
conduct without being legally binding or enforceable.
In England the entire English, law including the law ofmerchants; in Gennany
the codification of German Civil Code in 1901 is based on German customs. In
India the Hindu and Muslim personal laws have been mostly based on customs.
In ancient India Manu declared that it is the duty of the king to decide all cases
according to principles drawn from local3 usages. Narada also says custom
decides everything and overrules the sacred law. Likewise Asahaya - one of
earliest writers says 'immemorial usage of every country (or province) handed
down from generation to generation can never be overruled on the strength of
the Sastras. Thus all the ancient Hindu jurists Manu, Narada, Brihaspati,
Katyayana and Yajnavalkya gave to custom a high place which even was obligatory
on the monarch in administration ofjustice. The Muslim law equally recognised
customs ruffs, which have accepted to suit the needs of different classes of
people who embraced Islam. Hedaya says 'custom does not command any
spiritual authority like Irma ofthe learned, but a transaction sanctioned by custom
is legally operative, even ifit be in violation ofa rule oflaw derived from analogy.
It must not, however, be opposed4 to a clear test of Koran or of an authentic
tradition. In modem India5 in the face of march of legislation over other souces
custom has not altogether been abrogated by legislation. Articles 25, 26 and 28
of the Constitution indirectly guanamees the protection of such customary
practices of a community which of course are not contrary to the concept of
securlarism and democratic socialism.
In his Ancient Law, Maine says :
"Custom is a conception posterior to that of Themsiies
(judgments). However, strongly we, with our modern
associations, may be inclined to lay down, a priori that the
notion of custom must precede that of a judicial sentence and
that a judgement must affirm a custom or punish its breach, it
seems quite certain that the historical order of ideas is that in
which I have placed them. "
Puchta observed6 that custom is independent and self sufficient having
legislative authority but was a condition precedent of all sound legislation. Sir
3 Manu VIII, 3.
4 Jowla v. Dharum Singh, 10. LA. 511
5 Jain M.P. Custom As a Source, (1963).
6 Quoted by Jain, 3 JLJ 98 (1943).
2006-07] Custom: A transedent law with reference to Hindu Law & Muslim Law 159

Henery Maine, Hegel, Darwin and Diamond who enunciated the theory ofevolution
consider custom important source of law.
Sir John Salmond has attempted to defme relationship between custom
and society. According to him? custom is to society what law is to State. Each is
the expression and realisation, to the measure of men's insight and ability, of
principles ofright andjustice. The law embodies those principles a they commend
themselves to the incorporate community in the exercise of its sovereign power.
Custom embodies as acknowledged and approved, not by the power of State, but
by the public opinion ofthe society at large. According to modem political thinkers
the concept of 'law' and 'State' are of modem origin. Before the emergence of
modem politically organized States, societies existed which were established on
the basis ofreligion or blood e.g. the Hindu, Muslim, Semitic and Hebrew societies.
In such societies customary law was the main vehicle of social control of human
conduct which was mostly unwritten. All legal relationships between people
whether personal or proprietary was regulated by customs. For instance in the
Hindu society, all legal relationship regarding marriage, inheritance, succession,
adoption were governed by the customary law in each caste, group or tribe. In
England also the 'common law' embodies the features of customary practices. It
was orginally in the form of tribal usages. The wisemen whether judges or
administrators were only to declare the law by discovering the customs of the
people. Common has itselfis known as the 'custom ofthe realm'. Indeed Munroe
Smith has asked 'Ifthe English common law is not general English custom, what
is it.' In the Roman legal system also the Corpus Juris Civilis was supposed to
embody 'the unwritten law which usage has approved. Even the international law
itself is customary in character. This all goes to prove the fact that in the absence
of politically organized State custom was the main instrument between people
and society which served as a matric for control of human behaviour.
However, in modem times with establishment of independent and
Sovereign State the old medieval or feudal concept of society has come to an
end. The State has assumed the role ofnot only law administrator and dispensator
of justice but also of law creator. The laws have been codified or changed
through legislation. Now as in modem State law can be defined generally in
terms of State similarly in primitive societies it has been defined and understood
in terms of customs. Of course custom has not altogether been replaced yet it
has ceased to be the one the major instrument of social change or social welfare.
Place of custom in the Hindu Law and the Muslim Law :
The Hindu jurists always accorded a place of great importance to custom
7 Salmond, 232 at 234-35 (1957).
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as a source of law8 • It was regarded as coming after Sruit and Smriti. The
process of integrating custom with the law was, however, continuously carried
on in ancient society and thus were born the various Dharmasastras. When the
Smritis fell out of data in relation to the needs of the contemporary society, the
commentors adapted the Smriti-Iaw, by the process of interpretation, to bring it
in accord with customs which had taken roots in the then society. What the
commentators did was to take up an old text of the Dharmasastra and interpret
it in such a manner as to bring it in harmony with the social mores and customs
of the people. This process has been recognised by the Privy Council in the
following words: "The Digest (Mitakshara) subordinates in more than one
place the language of texts to custom and approved usages 9 ." According to
Derreit, "The Smiritis had been enlivended by commentators who introduced
customary elements into their exposition 10 ." It is how, starting from the same
base, two major Schools, Mitakshara and Dayabhaga, grew in the country and
the Mitakshara even came to have four sub-schools, viz., Dravida, Mithila,
Bombay and Benaras. On the other hand, the attitude of the Muslim jurists to
custom -was somewhat different from that of the Hindu jurists. The source of
Muslim law are Koran as containing the word of God; hadis or traditions being
the inspired utterances of the Prophet and precedents derived from his acts ;
ijma, the consensus of opinion among the learned; urf or custom and kiyas, the
analogical deductions from the first three. Urf or custom thus assumes a some-
what subordinate position in the scheme of Muslim law 11 •
During the British administration, the question of the place of custom in
the personal laws of the Hindus and the Muslims assumed a great significance.
In this respect, a distinction may be drawn between the Presidency towns, on
the one hand, and the mofussil, on the other. The Act of Settlement, 1781,
provided for the application of the 'laws and usages' of the Hindus and the
Muslims to matters ofinheritance and contract. Thus 'usages' were specifically
recognised. The question was authoritatively decided in Hirabase v. Sonabae
by the Supreme Court of Bombay, where a similar provision operated. The
question for the consideration of the court was whether Khojas and Cutchi
Memons, who were Muslim by religion but who followed the Hindu customs of
inheritance, should be governed by their customs or by the orthodox Muslim
law. The court refused to accept the thesis that this provision meant the application
ofthe Koran only, and that it excluded customs set up in conflict with the text of
the Koran as regards the Muslims. The court held that the provision was framed

8 M.P. Jain, Custom as a Source of Law in India, 3 Jaipur L.J., 96 (1963).

9 Bhyah Ram Singh v. Bhyah Ugur Singh, 13 M.L.A. 373, 390.
10 Administration of Hindu Law, op.cit., 40.
11 Tahir Mahmood, Customs as Source of Law in Islam, 7 II.L.I., 102-6.
2006-07] Custom: A transedent law with reference to Hindu Law & Muslim Law 161

solely on political grounds, and without any reference to orthodoxy, or the purity
of any particular religious belief. The purpose of the provision was to retain the
laws and uages of the Hindus and the Muslims. The policy which led to the
making ofthe provision proceeded upon the broad and easily recognisable basis
of allowing the newly-conquered people to retain their domestic usages. The
provision did not, therefore, adopt the text of Koran as law any further than it
had been adopted in the laws and usages of the Mohammedans, and any class
of Mohammedan dissenters found to be in possession of any usage which was
otherwise valid as a legal custom, and did not conflict with any express law of
the English Government, would be entitled to the protection of the provision to
the same extent as the most orthodox Sunny, it was thus clearly established that in
the presidency towns, a custom would be applied even though at variance with
a religious text.
The position in the mofussil was somewhat different. Neither the rule of
1772. Nor that of 1793, referred to custom as a source of law. It was only in
Bomay in 1827 through S. 26 of Regulation IV, that custom was given a
preferential place to the law of the defendant. Thus, there was doubt whether
a custom in conflict with the written text of law would be followed or not.
Perhaps, in the beginning the tendency was to ignore custom and apply the law
of the books rather rigidly. This was mostly because the early British
administrators were ignorant that custom played a momentous role in the lives
of the people, and they wrongly supposed that the Hindus and Muslims were
governed only by their sacred religious textual law. It has been asserted by
some that the insistence of the court that the advice must be based on the
original sources and commentaries, led to the application of rules which were
either obsolete or which had never been observed. In the case of Hindu law,
more specifically, it has been stated that to take the law from the Pandit
meant the elimination from the court's horizon of much of the customs and
usages which in the past had kept the law growing. But, this was not all, and the
fact remains that "The British judges themselves were more royalist than the
King intheir devotion to Sanskritic learning," and even when a pandit attempted
to counter a text with the customary practice the judges would notice the
variance and ascribe deviation from the text to the corruption of the pandit and,
consequently, customary law was at a discout. The result of this approach was
that at times some norms contained in the religious texts were applied which
had become obsolete in practice, in course of time. But then the realization
dawned, and custom came to be accorded an important place in the scheme of
things. As reards the Hindus, the position was settled rather early as the Privy
Council, taking note ofthe great importance accorded to custom in the traditional
Hindu Jurisprudence, ruled in 1868 : "Under the Hindu system of law, clear
162 NALSAR LAWREVIEW [Vol.3: No.1

proof of usage will outweigh the written text of the law 12 ." The point was
settled, still more specifically somewhat later when it was stated that where
custom was proved to exist it would oust the general law, which,however,
would regulate all outside the custom 13 • As regard the Muslims in the mofussil,
the place of custom remained doubtful for some more time 14 • As late as 1904,
the Allahabad High Court held in Jowala Bukhsh V. Dharum Singh15 that a
family custom among the Muslims excluding the daughter from inheritance
could not be applied. This attitude ofthe courts was due to the low place allotted
to custom traditionally by the Muslim jurists 16 • But then the Privy Council
conferred a favoured position on custom in Mohd 17 • Custom now got precedence
over, and was made legally enforceable even when in derogation to, the traditional
and orthodox Muslim law. In Md. Ibrahim v. Shaik Ibrahim 18 , the Privy Council
stated that in India "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
Mohammedan Law, governing the succession in a particular community of
Mohammedans 19 ." But then the ShariatAct, 1937, abrogated custom to a large
extent as regards the Muslims20 •
Then there were certain territories in India, like Punjab, Oudh, Kumaon
Hills, where the sacred books of the Hindus or the Muslims had not
penetrated and had not had much impact, and which were areas
predominantly of customary law. In these areas, custom was specifically made
the first rule of decision. It was only when no custom was proved that the
personal law was applied21 •
Thus, the courts gave the utmost scope to custom in administering justice
to the Hindus and Muslims. All types of customs were applied, e.g. tribal,
communal, sectarian, local, family etc. For example, the Supreme Court sustained
a custom among the Jains under which a widow can adopt without the consent
of her husband22 • But while recognising custom on one hand, the courts were,
on the other hand, making it more formal or rigid. A custom to be enforceable,
it was held, must be ancient, certain and reasonable. A general rule accepted
12 Rudolph and Rudolph, Barristers and Brahmans in India: Legal Cultures and Social Change, VIII.
Comparative Studies in Society and History (Hauge, 1965), 24-49.
13 Collector of Madura v. Mootoo Ramalinga, 12 M.I.A. 397, 436 (1868).
14 Neelkisto Deb v. Beerchunder, 12 M.LA. 523 (1869).
15 Jowala Bukhsh v. Dharum Singh (1866) 10 M.LA. 511.
16 (1901) I.L.R. 23 All. 20.
17 Sulmankha v. Kadir Dad Khan 18.
1817C.W.N.97.
19 AIR 1922 P.C. 59.
20 Ali Asghar v. Collector, Bulandshr (1917) I.L.R. 39 All, 574.
21 Abdul Hussain v. Sona Dero, 45 LA. 331 (1917).
22 Shiba Prasad Singh v. Prayag Kumari, 59 LA. 331 (1932).
2006-07] Custom: A transedent law with reference to Hindu Law & Muslim Law 163

was that a custom prevalent in 1773 or 1793 A.D. was ancient and enforceable23 •
These dates were selected because in 1773, the Supreme Court was established
in Calcutta and in 1793, the Cornwallis scheme was introduced in the mofusil of
Bengal, Bihar and Orissa and also a s)(stem of registration of Regulations was
introduced at that time. Thus, during the British Administration, custom came to
be given a place ofhonour in the administration ofjustice. It became an important
source of law and a large volume ofcase-law arose around the various customs.
Custom was given preference over the religious law of the parties. This was a
just and reasonable approach for, in practice, the law of the Shastra or the
Shara was not observed by the people in all its pristine purity and all kinds of
customs had ingrained themselves into the scheme of things. It was just and
equitable that the law which the people observed in practice be enforced rather
than the .theoretical law contained in the religious books. It would have been
harsh on the people to force them to fore-go their customs which constituted
the living law in favour of the orthodox system of law. The courts adopted a
kind of tolerant attitude towards the customary law of the people, and did not
adopt a very scrutinising attitude in the formative stages ofthe law in India with
the result that most of the customary law of the people could be preserved.
This was good in the days when the legislature was not an active as a law-
maker. It also came to be ruled that a custom against public policy, or against
justice, equity and good conscience, or an immoral custom could not be enforced
by the courts 24 • This leds to the non-recognition of many custom. Thus, the
courts came to exercise a kind of censorial power on customs. But, it may be
remembered that in course of time, proving a custom in court in derogation to
Shastric law became an extremely onerous exercise, and thus many existing
customs which could not be proved satisfactorily could not be judicially recognized.
In course of time, proving a custom in the court in derogation to Shastric law
became an extremely onerous and hazardous exercise, and thus many existing
customs ceased to be recognised by the courts as they could not be proved
satisfactorily. Before the advent of the British rule, customs were enshrined in
the unexpressed consciousness of the people and were enforced by village
panchayats. They were unwritten and unrecorded. Till this happened,
customary law retained elements offlexibility and growth. But the British courts
began to insist on formal methods of proof. The onus to prove a custom was
laid on the party asserting its existence by clear and unambiguous proof, by
cogent and satisfactory evidence. There was no presumption that a custom
existed. To facilitate proof of custom, records of customs came to be prepared
in wajib-ul-arz or riwazi-am which could be received in evidence in the courts.
23 Abdul Hussain v. Sona Dero, 45 LA. 331 (1917).
24 Shiba Prasad Singh v. Pravaq Kumari 59 LA. 331 (1932).
164 NALSAR LAWREVIEW [Vo1.3: No.1

Entries in these documents were held to constitute a prima facie evidence of

customs were not regarded as conclusive and could be rebutted by other reliable
evidence 25 • In addition, some official and private attempts also canle to be
made to record customary law in some regions, and, thus, a few collections
customary law appeared during the British period26 • Also, in course of time,
new customs ceased to be recognised by the courts. The courts began to insist
that only ancient customs could be recognized by them..Custom then ceased to
contribute much to the growth oflaw and the legal system tended to become rigid
and fossilized.
It may, however, be noted that too much dependence on custom has its
own disadvantages. Custom tends to make law very much less uniform as the
law could vary from family to family, community to community and region to
region in certain respects. Ascertainment of a custom places a heavy load on
the judiciary for it must take evidence to find out what the custom is and whether
it is ancient or not so as to be enforceable. With the development of society,
with the increasing mobility ofthe people, with the maturity ofthe legal system,
a time come when uniformity of law becomes a great desideration. So longs as
tribal, sectarian or communal customs survive, the class distinctions among the
people also continue. It is only through the evolution of uniform law that the
Indian society may become more closely knit and integrated.
Modem legislation has abrogated custom to a large extent and the value
of custom as a source of law has thus been reduced, for example, S.4(a) of the
Hindu Marriage Act, 1955, gives overriding effect to the Act, and abrogates
custom with respect to any matter for which the act makes a provision, except
for certain matters for which custom has been preserved. These matters
are: recognition of marriage between parties within prohibited degrees and
sapindas; rites and ceremonies regarding celebration of marriages; divorce.
Thus a customary divorce is not abrogated. The Hindu Adoptions Act, 1956,
abrogates custom except on two matters : adoption of a married person, or of a
person over 15 years ofage. Similarly, the Hindu SuccessionAct, 1956, abrogates
all custom. This has introduced by and large uniformity and certainty in law.
For Muslims, as early as 1937, the customory law was abrogated by the
Muslim Shariat Law Act. This law vitality affected such communities as Khojas,
Memons, Vohras, who were converts from Hinduism and containued to follow
the Hindu customs in the matter of inheritance and succession. The Shariat Act
abrogated these customs. Except three matters, viz., wills, adoption and legacies,
where a Muslim can adopt Muslim law, in all other matters Muslim law was
25 Fateh Ali Shah v. Muhammad Baksh, A.I.R. 1928 Cal. 216.
26 Balgobind v. Badri Prasad, 50 LA. 196 (1923).
2006-07] Custom: A transedent law with reference to Hindu Law & Muslim Law 165

Muslim were uncertainty, expense ofascertaining custom and inadequate rights

granted to women under customary law as compared to Muslim law as such.
The truth however is that the main agitation for abrogation of customs among
the Muslims was carried on by orthodox Muslim religious bodies who did not
relish that Muslims continue to follow customs having links with their previous
Hindu culture.
Position of Custom in India
Before the advent of independence the British always tried to follow a
policy of non-intervention in personal matters of the Hindus and Muslims,
therefore became an important sources of law. The rules of 1772 and 1793 laid
down that the court shall apply the personal law ofthe Hindus in case ofHindus
and Muslims law in case ofMuslims. The Act of Settlement 1781 also provided
for the application ofthe "laws and usage' ofusages' ofHindus and Muslims in
matters of inheritance and contract. The courts in India before independence
upheld custom, which came in conflict with the ordinary law. The privy Council
observed27 that 'custom plays a large part in modifying the ordinary law, and it
is now established that there may be custom at variance even with the rules of
Mohammadan law governing the sllccession in a particular community of
Mohammendans. Similarly there are certain areas in India like Punjab, Oudh,
Kumaon Hills where the sacred books of the Hindus or the Muslims had not
much impact and the people were largely governed by customs and usages.
The ascertainment of custom placed a heavy burden upon the courts to
discover and to satisfy itself about the existence of customs. In some cases
customs were so much at variance with each other that they acted as a brake
in the integration of various communities, which still stand divided on various
grounds. Customs could not bring about unity - social, cultural, political or legal
-'nor uniformity as the customary law differed from family to family place to
place. However, there was a wind of change immediately before 1947. Social
reformers and political leaders wanted to codify the customary Hindu law in
order to bring uniformity within diversity and at the same were determined to
eliminate injustice and evils caused by old, inconvenient and unnecessary customs
and usages which were standing in the way of regeneration of Hindu women
and untouchables. Hence a strong urge for State interference in the personal
matters of the Hindus became indispensable in order to adjust and even abolish
old customs in accordance with the changing needs of Hindu society28. The
Hindu widows' Remarriage Act, 1856, the Child Marriage Restraint Act, 1929,
the Hindu Women's Rights to Property Act, 1937, and the Hindu Married
27 Mohammad Ibrahim v. Shaik Ibrahim, AIR 1922 PC 59.
28 Krishna Singh, v. Mathura Ahir, AIR 1980 SC 707.
166 NALSAR LAWREVIEW [VoI.3: No.1

Women's Rights to Separate Residence and Maintenance Act, 1946 were the
most significant statutes passed before 1947 to improve the social and economic
position ofHindu women by annulling the age-old dying concepts.
After 1947 the Parliament has taken a more progressive and secular
attitude in changing the customary laws of the Hindus concerning marriage,
succession, adoption etc. The Hindu Marriage Validity Act, 1949 and the Civil
Marriages Act, 1954 were a great step forward which validated the inter - caste
marriage. These enactments usher the foundation of a casteless society in
India. In 1950 the Constitution of India was promulgated. The Constitution
aims at the establishment of an egalitarian society without distinction as to sex,
religion, caste or social and economic position. In pursuance of tire social and
constitutional set objectives the Indian Parliament has enacted the Hindu Marriage
Act, 1955; the Hindu Adoptions and Maintenance Act 1956, the Dowry
Prohibition Act, 1961 etc. which have greatly altered the existence and extent
of customary law of the Hindus in India.
As regards the customary law of the Mohammedans the position is
different today. The first significant measures to abrogate the customary law of
some Muslim communities was the Shariat Act, 1937 which brought about
uniformity oflaw among the Muslims by annulling the old customary law ofthe
Muslims who had been converted to Islam from Hinduism yet retained same
old customary Hindu Law. The Dissolution of Muslims Marriage Act, 1939
was another landmark which gave a Muslim wife the right ofjudicial separation
from her husband. However, the large area of Muslim law is still governed by
old customary practices. Muslim Public opinion is being created in India for
modification of old Muslim customary law29 • The Constitution of India also
aims at the uniform civil code for all citizens irrespective of religion. The
codification ofthe Muslim law would greatly increase the possibility ofa uniform
civil code as envisaged in Article 44 of the Constitution of India.

29 Mohd. Ahamad Khan v. Shah Bano, AIR 1985 SC 945.