“Under the Hindu system of law, clear proof of usage will outweigh the written text of the law.” Comment. Whether custom has been recognized under the codified Hindu law? If yes, mention those provisions.
Answer
The statement “Under the Hindu system of law, clear proof of usage will outweigh the written text of the law” reflects the traditional and continuing importance of custom in Hindu jurisprudence.
Hindu law has evolved over centuries primarily through Smritis, commentaries, and most importantly, customary practices (achara), which were accepted and followed by the people. Even today, valid customs hold the force of law and can prevail over written statutory provisions, provided they fulfill certain essential conditions.
Meaning and Legal Position of Custom:
A custom or usage refers to a rule which has been:
- Continuously and uniformly followed,
- For a long time (antiquity),
- With certainty and reasonableness,
- Not against public policy or morality,
- Not expressly barred by statute.
If such a custom is clearly proved, courts may recognize and enforce it even in preference to the codified law.
This principle was affirmed in the case of Collector of Madura v. Mootoo Ramalinga Sethupathi (1868), where the Privy Council observed that:
“A clear proof of usage will outweigh the written text of the law.”
Recognition of Custom under Codified Hindu Law:
Custom has been expressly recognized under various provisions of codified Hindu law, including:
1. Hindu Marriage Act, 1955
- Section 3(a): Defines “custom” and “usage” as any rule that is certain, ancient, reasonable, and has obtained the force of law.
- Section 7: Marriage is valid if solemnized in accordance with the customary rites and ceremonies of either party.
- Section 29(2): Recognizes the validity of divorce under customary practices, even if not provided under the Act.
2. Hindu Succession Act, 1956
- Section 5(ii): The Act does not apply to members of Scheduled Tribes, thereby recognizing the continued relevance of customary succession laws.
- Local customs may override statutory rules in specific succession matters.
3. Hindu Adoptions and Maintenance Act, 1956
- Section 3(a): Includes recognition of custom in definitions.
- Sections 10 and 11: Prescribe conditions for valid adoption, but allow deviations if there is a valid custom to the contrary.
4. Hindu Minority and Guardianship Act, 1956
- Customary rules regarding guardianship are recognized unless expressly barred by the Act.
Conclusion:
Custom has a vital place in the Hindu legal system, even after codification. The legislature, while enacting Hindu law statutes, has carefully preserved and recognized the authority of valid customs. Thus, where such customs are clearly established, they can prevail over the written text of the law, in keeping with the flexibility and traditional character of Hindu jurisprudence.