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Customs overrides the written text of Hindu law-Explain
In primitive societies human conduct was regulated by practices. These rules grew up spontaneously. These were later adopted by the people. Law is and has been for centuries an instrument of social regulation and of social change. It operates fundamentally within society. Its targets are always individuals and groups of individuals in society. Individuals and groups of people in society over a period of time develop some form of rules and regulations on their own, even before any 'legal system' as such comes into being. These rules are often referred to as customs. Society pre-exists a formal legal system. Custom too exists prior to the advent of a legal system. The rules accepted by the generality of the people and embodied in their customs are deemed to be right. Custom has played an extremely significant role as a source of law till other sources of law like legislation and precedent acquire prominence. Customs have been the most potent force in molding the ancient law. Salmond pointed out two reasons for the recognition of customs as a source of law.
1. Custom is frequently the embodiment of those principles which have commanded themselves to the national conscience as principles of justice and public utility.
2. The existence of an established usage is the basis of a rational expectation of its continuance in the future.
Salmond said that justice demands that unless there is good reason to the contrary, men’s rational expectations shall be fulfilled rather than frustrated. Keeton observes that the main reason for the admission of custom as a source of law seems to be that before state organs undertook the task of framing laws for the community, this was done by the people themselves. The rules elaborated by habit were enforced in courts. According to Savigny, customs is in itself an authoritative source of law. In early time it was only customary rules which were the only kind of laws known to the people. Those had the people sanction. Austin points out that as far as English law is concerned the so-called English customary law is purely on invention of the English judges.
An understanding of Hindu law begins with the concept of Dharma. Dharma refers to one’s religious, legal, ethical, and social duties. The highest source of dharma is the śhruti in the Hindu Law, the literal translation of which is, ‘what is heard’. The Vedas are the most prominent of the srutis. It originated from divine law and act as revelatory sources. They are the oldest of the sacred texts in Hindu law. Their importance lies in the message itself and not in their origins. The Vedas consist of four books: Rig-Veda, Yajur-Veda, Sama-Veda, and Atharva-Veda. They were written in a poetic form as a collection of hymns. They are considered as the spirit of the law in Hinduism. It guides on the Hindu way of life, but not as positive law. Among others, the next in the order of religious texts is the smriti, which translates as ‘what is remembered’. They began with sutras, as the ideas and rules derived from the Vedas. The smritis were further developed by Hindu legal texts called Dharmasastras. These sastras, in the nature of law books, act as the supreme authority of laws in Hindu law. Because the sastras orginiate from the śruti, they are considered sacred, but not in the same sense as a sruti. The most important of the smritis is Manu’s code, a set of laws compiled by Manu, an ancient lawgiver. The Manu Code is divided into twelve chapters. Subjects include origins of the world, sources of law, marriage, the justice system, and penances. The Manu code of laws is considered to be the most authoritative of all the smrits and whenever an inconsistency arises, Manu’s code is set to prevail. The commentaries and digests are the third class of the four different classes of Hindu law texts. The commentaries and digests were written analyzing and interpreting the smriti texts. Commentaries, called bhasya, are "linguistic exegesis, hypothetical examples, and theoretical disquisitions on a single Dharmasastra text." The digests, or nibandha, are much like the commentaries but instead of analyzing a single dharmasastras text, they explore a single topic from a series of smriti texts. Custom forms part of the fourth class of Hindu Law. Local customs, family customs and class customs are the three main kinds of customs that have been recognized by the courts. The courts have laid down certain essential tests in order for a custom to be held as valid, as under,
1. The custom must be ancient-Custom passes on from generation to generation. The fact that a said custom has been passed down through generations means that the said custom has been reinforced over many years. This reinforcement occurs when a lot of time has passed between when the practice of a said custom started and its persistence. Custom which is basically a set of unwritten rules needs age for it to be accepted and approved.
2. The custom must be continuous-This is another important requirement of custom. Continuance implies that a custom has stood the test of time, i.e. it has not been conveniently adopted. A single instance of a breach of custom would not render the custom invalid.
3. Custom must be uniform - A uniform custom would imply that the said practice that was followed or being followed has not changed from the custom that had been originally conceived.
4. Certainty-A custom must be certain. It should not be a figment of imagination. Its practice has to be proved by facts and not by opinion, reason or analogy.
5. Reasonableness and Public Policy - A custom must be reasonable to the parties following the custom and should be in lines with the public policy. The latter takes into account the aspect of morality.
These are the main features of a valid custom. It should be noted that continuity, certainty and uniformity overlap considerably.
In this background, the validity of the statement “Customs overrides the written text of Hindu law” may be examined.
In Collector of Madura vs. Moottoo Ramalinga Sethupathy (Ramnad case) 12 M.I.A. 397 (1868), the facts were that the Zamindar of Ramnad died. He left without any son. After his death, his estate vested on her wife Rani Parvathavardhinini. After the death of her husband, Rani Parvathavardhinini adopted a son. In doing so she took the consent of her husband’s sapindas. There was no authorization of adoption from her husband. When the Collector of Madura came to know about the death of Ramand, he notified the Government about the death of the sonless Zamindar. Under British law, if any Zamindar died without heirs, after the death of his wife the Zamindari would be seized by the Government. On the death of Rani Parvathavardhini, the estate of Ramnad would have been seized by the Government. But after the death of Rani Parvathavardhini, her adopted son claimed as an adopted son and brought a suit for declaration of the validity of the adoption. The Issue was whether an adoption made by the widow was valid with the consent of the sapindas without the husband’s authority?. The Privy Council evaluated different Schools and sources of Hindu law while delivering its judgment in this case. After tracing the historical development of Hindu law, the Court held that clear proof of usage usage will outweigh the written text of the Hindu law. Hindu law should be administered from the viewpoint of usage of the written texts of law. Custom is one of the most important sources of Hindu Law. It is important to the point that, if any conflict arises between a custom and the text of the Smritis, which is a written source, such custom will override the text. The Privy Council based their decision on the Smriti Chandrika and Prasara Madhviya, which are the most authoritative source in Hindu law regarding adoption, and concluded that in the Dravida School, even in the absence of authority from husband, a widow is entitled to adopt a son with the assent of his sapindas or kindred. The Privy Council observed: “For under the Hindu system of Law, the clear proof of usage will outweigh the written text of the law.”