Análisis de resultados Actividad 2

While it was the settled policy of the British administration to preserve customs of the people in the administration of justice, there were certain forces which were working for their abrogation. One such effort, on a very big scale, was made through the Muslim Shariat Act, 1937, which abrogated custom applicable to Muhammadans and restored to them their personal law. Except agricultural land, all questions regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarrat, maintenance, dower, guardianship, gifts, trust and trust property, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in case where the parties are Muslims should be the Muslim Personal Law (Shariat) [To a limited extent, custom was abolished by the Cutchi Memons' Act, 1920. These people were governed by the Hindu law of inheritance and succession. This Act gave them an option to place themselves under the Muslim personal law by means of a declaration and thus abrogate custom]. Option was given to the Muslims to adopt the personal Jaw in preference to their customary law in matters pertaining to adoption [Muslim law does not recognise adoption, but custom permits adoption in Punjab. Nur v. Bhawan, 162 IC 854], wills and legacies. The provisions of S. 2 are coercive, while those of S. 3 are persuasive. The reasons which were given to abrogate custom were ‘uncertainty and the expense of ascertaining custom’ and ‘inadequate rights granted to women under the customary law as compared to the Muslim law’. It was pleaded that customary law was uncertain and indefinite whereas the Muslim personal law existed in the form of a veritable code and was too well-known to admit of any doubt or to entail any great labour in the shape of research, and so abolition of customs would ensure certainty and definiteness to the mutual rights and obligations of the public. This argument, of course, may not stand the test of scrutiny. But a much more sound reason to abrogate custom was that under it the position of women in matters of inheritance was inferior to that under the Muslim law. The general rule of intestate succession under custom was agnatic succession which excluded all females except a widow and daughter who were allowed a life interest or maintenance. The Muslim personal law accords a better position to women. The abrogation of customary law was a result of the agitation carried on by such bodies as the Jamiat-ul-Ulema-i-Hind, an organisation of Muslim religious men. Support was lent by many Muslim Women Organisations which condemned the customary law as adversely affecting their rights.

With a view to introducing uniformity in, and to liberalize, the law applicable to the Hindus, certain portions of it have been codified recently. By far and large, the effect of this legislation has been to reduce the importance of custom though it is not correct to say that custom has been

completely abrogated. Some force is still given to customary law. Thus while S. 4 (a) of the Hindu Marriage Act, 1955, gives overriding effect to the Act and abrogates a custom with respect to any matter for which the Act makes a provision, customs in respect of following matters have been left intact, viz., recognition of marriage between parties within degrees of prohibited relationship, and sapindaship rites and ceremonies regarding celebration of marriage, divorces and thus a customary right to obtain dissolution of a Hindu marriage is not abrogated.

Section 4 of the Hindu Succession Act, 1956, provides for the overriding effect of the Act in respect of matters dealt with by it. Any custom inconsistent with it is abrogated. The Act does not recognise impartibility except that created by sanad or government grant. Impartibility by custom has now been abrogated and succession to such property would now be regulated by the rules which apply to other property. Custom regarding power of disposal is not abrogated; whether a person has power to dispose his property by will is a matter outside the Succession Act; it is to be decided by reference to custom.

Similarly, S. 4 of the Hindu Adoptions and Maintenance Act, 1956, gives overriding effect to the Act. On two matters, however, customs have been saved : Adoption of a married person or of a person over 15 years of age, only if custom permits.

Concluding Remarks

The foregoing survey would show that, after the advent of the British in India, custom came to be given a place of honour in the administration of justice. A large volume of case-law arose in India having a bearing on custom. Custom came to play a very important part as a source of law; it took a place second only to the statutory law; custom was given preference over the religious laws of the parties. This was a reasonable and just approach for, in practice, the law of the shastra and the shara was not observed by the people in all its pristine purity and that all kinds of customs had ingrained themselves in the scheme of things. It was only just and equitable that the customs which people had been observing in practice be enforced rather than the theoretical law contained in the books; it would have been harsh with the people to force them to forego their customs in favour of the orthodox system of law.

All kinds of customs - family, local, tribal - came to be applied. Formally, the tests applied to adjudge the legal enforceability of a custom were the same as those laid down in England, but in their practical application, they were not rigidly enforced, and the courts showed a great amount of flexibility of approach and toleration towards customs. Thus about the qualification that a custom to be applicable should be antiquated, we have already seen the liberality of approach which the courts adopted towards this maxim in India, and, in a large number of cases, customs were enforced when there was evidence of their operation over a period of twenty years or so. This is not so in England where a custom must be in existence since 1189 A.D. Similarly, the courts, earlier in the day, declared that they would not insist upon technical methods of proof, and many customs were held proved even though the quantity and quality of evidence in support of them left something to desire [While generally that was the attitude, there are a few cases on

record where the courts showed some intolerance towards some customs without any rational reason. One such case is Gopalayyan v. Raghupatiayyan, 7 Mad. HC 250. The Civil Judge found that among the Brahmins of the locality there prevailed a custom, 'uniform and uninterrupted', 'for the last 134 years', of adoption of sister's son. Nevertheless, the Madras High Court refused to accept the custom saying, “In the case of Brahmins it is impossible in any case to believe in the existence of a customary law of which no trace appears in any written authority of the place to which they belong”]. Further, in England, there is nothing like a family or a tribal custom; there the custom is 'local' having the force of law in a particular locality. But in India, it is not so; here family customs came to be fully recognised and enforced. Similarly, the communal or tribal customs were enforced, whereas such would not be the case in England. It may be noted that a large mass of custom here is tribal or sectarian.

In England, the term ‘usage’ is used for a general line of conduct adopted by persons in a particular department of business life. In India, the term ‘usage’ has been used in a completely different sense. Usages accepted by the courts have had nothing to do with trade or commerce but covered all aspects of family relations. By and large, the term 'usage' has been used synonymously and interchangeably with custom. Bombay Regulation IV of 1827 speaks of the ‘usage of the country’, the Punjab Act, 1872, of the ‘customs of the parties’. In the recent Hindu legislation, customs and usage have been defined in the same way. In some earlier cases, it was said that a custom is a usage of long standing [In Edward v. Sheikh Gozaffar Hussein [3 CWN 21], the Court stated: “A long time must elapse before a custom can grow up; but this is not necessarily the case with respect to usage. There is a great difference between a ‘custom’ and ‘usage’ and that clearly the latter may be established in a much less period of time than a custom. We are not prepared to say how long a period must elapse before such a usage can grow up, but it can grow even in 12 years”] but, in effect, it makes no difference, for in India the rule of immemorial antiquity does not operate, and a usage of twenty years standing even if it may not be characterised as custom, is followed nevertheless.

Another doctrine adopted in India, for which no parallel can be found in England, is that a family can renounce customs applicable to it and adopt other customs. Another English rule was held not applicable to India which is that if a custom was alleged as applicable to a particular district, and the evidence tendered in its support proved that the rights claimed had been enjoyed by the people outside the district, the custom would fail.

The looseness with which the English tests of a valid custom were applied in India had a good result in the formative stages of the judicial system, for, that way most of the customary law of the people was preserved. Even in matters of proof, the courts were not very technical or scrutinising. [In two cases, Rup Chand v. Jambu Parshad (1909) 37 IA 93 (adoption of a married person amongst Jains) and Chiman Lal v. Hari Chand (1913) 40 IA 156 (adoption completed merely by unequivocal declaration to that effect and treatment of the adoptee as adopted son) though the Privy Council was not satisfied with the evidence, as it was 'somewhat limited' in character and so cautioned against treating these cases as precedents for the future, did, nevertheless, apply custom to the instant situations at hand]. Had those tests been rigidly applied,

most of the customary law would have disappeared resulting in great injustice to the unsophisticated people; it would have created a great void in the judicial system because in the early British days the legislature was not active, did not enact laws in the area of private law, and judges had to decide cases, in the absence of law, by justice, equity and good conscience. In part, the judicial attitude of tolerance and indulgence to custom may be explained by the fact that legislature being inactive, and there being no lex loci in the country, if customs were rejected on technical grounds, there would be no law to apply and the courts would be forced to invent principles to decide cases. Rather than resort to principles borrowed from a foreign Jurisprudence and unknown to people, it was better to enforce such customs as were available even though they might not fulfil all the rigours of English law. The judicial attitude was thus to some extent born out of necessity of the situation. This attitude towards custom did introduce an element of uncertainty and confusion as to the rights of individuals but that was for long the bane of the Indian legal system, and this uncertainty was not so dangerous as would have arisen had the customs been abrogated and principles foreign to the people introduced.

Not only were customs recognised and legally enforced, a great effort was made to ascertain them and to reduce them in writing. It was done administratively, like compilation of riwaz-i-am, in addition to what happened judicially when a custom was held proved. Thus the customs which so long had been unwritten, and lived in the consciousness of the people, became certain and written. This made the system more definite, but it did, on the other hand, stereotype the customs; the element of flexibility and growth disappeared; customary law became rigid and lost its capacity of organic growth. Thereafter, the system could grow and be developed by legislation, and it was not the policy of the British administration to interfere with the personal laws of the people except when there was public opinion for it. To take an example, in the area of Muslim law, the Shariat Act was passed as a result of the demand of the Muslim people. This Act abrogated, to a large extent, custom modifying the Muslim law. In the area of Hindu law reformative legislation was undertaken from time to time as a result of public opinion, which abrogated custom as well as regarded Hindu law as backward. One difference of approach between Hindus and Muslims may however be underlined. Whereas custom was abrogated to restore orthodox Muslim personal law, there is no example where a custom was abrogated to restore a principle of Dharmashastra. Whatever changes were made were to reform Hindu law and to that extent, custom or text, whatever came in the way was abrogated. So much so, that through recent Hindu legislation, Hindu law has been codified and reformed and made uniform throughout the country, certain customs have been still preserved even at the cost of uniformity.

It appears that customs have had their heyday and they have practically exhausted their efficacy as law-creating agency. They have now ceased to act as a fruitful agency of law reform. New customs are difficult to get recognition from the courts. Their ascertainment has also led to their fixity. The future legal growth in India will be mostly due to legislation, and to some extent, judicial interpretation and precedent, though comparatively, the latter would be less important than the former. And, usually, when a new legislation is passed custom to that extent is abrogated as is depicted by the recent Hindu legislation. This trend, however, is in line with the developments which have taken place in every complex society, where the custom becomes less effective. The test of custom is continued observance and customs ex hypothesi cannot be suddenly created to meet a new problem. Custom is

useful for situations which have already occurred, but cannot create a rule to deal with a future difficulty.

The predominance of custom makes the system less uniform; it varies from family to family, from region to region and from community to community. It places a double burden on the judiciary which has to decide not only questions of fact, but also to take evidence to decide existence and content of the custom alleged to be applicable to the facts. Judicial proceedings thus become dilatory and time- consuming. It becomes expensive for the parties for they have to produce witnesses not only to testify to the facts of the case but also to custom. Till a custom is judicially accepted, position remains vague and indefinite for no one can feel sure whether the custom would be accepted as valid or not. All these considerations point to one inevitable result - abrogation of custom and enactment of legislation instead. This has already been achieved to some extent. As time passes on, custom is bound to lose its pre-eminent position which it has enjoyed so long in India. It was inevitable till the legal system itself was in its formative stages. But when the legal system has achieved maturity, people have also become sophisticated and literate and, therefore, time is ripe for uniform legislation and abolition of custom. In every mature and developed system, custom plays a very minor role. Take the example of England. There is one other very important reason as to why custom should now be abrogated. Most of the customs are tribal and communal or sectarian, and so long as custom survives, these class distinctions are also bound to survive. It would lead to a better integration of the people, if the sense of separation of each community arising out of its distinctive customs were removed. As it happens, in every progressive society, custom ceases to play an important role after a stage of social evolution is reached which appears to have been reached in India. It may be that customs of certain tribes may have to be preserved for a little longer time; the Constitution seeks to do that with respect to certain very backward areas like NEFA and Nagaland. These people are in a backward state of evolution, and their modes should not be changed suddenly till they have reached a stage of evolution where they can assimilate new ideas and principles and give up their habitual and traditional patterns without much violence to their feelings and susceptibilities. But, as regards the rest of the people, these considerations do not prevail; and with them, no justification to keep their disparate customs appears to be imperative any longer.

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