Custom is the parent of personal laws in all countries and India, a country with diverse custom; it is not an exception to it. Custom is regarded as one of the most important source of law. Custom is a rule, which is a particular family, a particular class, community or in a particular district, has owing to prolonged use, obtained the force of law. The importance of custom in Hindu Law has been so great that Privy Council in case of Collector of Madura v. Moottoo Ramalinga, laid down that clear proof of usage will outweigh the written text of the law. It must be ancient, certain, reasonable, and continuously followed. If it is in derogation of general rule of law it must be strictly construed. In Deivanai Achi v. Chidambaram, it was held that custom to have the force of law, must be ancient, certain, and reasonable.
When the Government of India Act, 1935 was in force the validity of all statutes including statutes relating to Hindu law had to be determined with reference to the powers of the legislature concerned (Central or Provincial) under the lists in Schedule VII to the Government of India Act read with the provisions contained in the chapter on the distribution of legislative powers. After the enactment of the Constitution in 1950, the validity of the enactments made after the Constitution will have to be determined with reference to the legislative powers of the legislature concerned under the lists in Schedule 7 read with the chapter on the distribution of legislative powers. Apart from this, as the Constitution has conferred under Part III Fundamental Rights and has also enacted Directive Principles of State Policy under Part IV, the courts have to determine whether any provision of Hindu law contained in the ancient texts or in the statutes or governed by custom infringes the said provisions.[1]
After the Constitution, the validity of an Act has not only to be determined with reference to the powers of the legislature but with reference to the question whether any of its provisions are opposed to the provisions of the Constitution and in particular to the chapter Fundamental Rights. The infringement of the provisions of part III relating to the Fundamental Rights renders any law in force void (Act. 13). The expression “Law in force” would include Hindu law as contained in the Texts as well as Hindu law based on Custom. In Santram v Labh Singh it was laid down by the Supreme Court that expression “Law in force” would include custom and usages having the force of law.[2]
MARRIAGE
According to Hindu Law, marriage is one of the 16 sacraments of every Hindu’s life. The sanctity of the institution of marriage under Hindu Law is very clear from what has been given in the Manusmriti. According to Manusmriti, “Marriage is a divine institution given by Gods… One should not think that he has obtained her by choice…Her unity with her husband is established by the Vedas.” Therefore “a woman is half of her husband and completes him”. Manu says that a male is incomplete without his wife. A complete entity comes into existence by the unification of a male and a female, i.e. husband and wife. This unification sets an example for others and glorifies their personalities.[3]
Being a holy tie, one cannot get out of it according to his own free will. Marriage is, therefore, an indissoluble bond and it remains so birth after birth. As observed by Duncan Derrett, “The intention of the sacrament is to make the husband and wife one, physically and mentally for secular and spiritual purposes, for this life and for afterlives. A Hindu, his wife is not merely a life companion but a life partner in following the religion and performing the religious deeds.[4]
CUSTOMS RELATING TO MARRIAGE
INTER-CASTE MARRIAGE:
Inter-marriage between persons of different VARNAS or castes was certainly not uncommon in the earlier period. Ancient Hindu Text prohibited “Pratiloma” marriage i.e. between males of lower caste and females of the higher caste. But “Anuloma’ marriage i.e. between males of higher caste and females of lower caste was permitted and recognized by texts. But with the passage of time the rigours caste system dominated the whole sense and it was required that the parties to the marriage must belong to the same caste.[5] Inter-marriage between DVIJAS and Sudras were forbidden by MANU and YAJNAVALKYA.[6]
The PANIGRAHANA rite or the ceremony of joining hands was allowed only for marriage with women of equal class, but when the marriage was with a woman of an inferior class, the bridegroom’s arrow or goad or the hem of his garment was, in that order, substituted for the bridegroom’s hand in the case of the Kshatriya, Vaishya, and Sudra brides. (Manu III, 43, 44). The wedding with a Sudra wife was to be without mantras.[7]
In the post-Vedic period, the Hindu sage approved of the sa-varna marriage and disapproved of inter-varna marriages. Later on, this prohibition was extended to various jatis, and the marriage came to be approved in the same jatis.[8]
CONSTITUTIONAL VALIDITY
The rule in ancient law books regarding marriage between persons of different castes has long ago become obsolete. Marriages between persons belonging to different castes are therefore invalid in the absence of usage to the contrary.
In family matters, India has a system of personal laws. i.e. Hindu Law for Hindus, Muslim Law for Muslims and so on. Some of these laws have been amended by statues; some like Muslim law has been left unamended. Challenges to these laws based on the basis of religious differentiation, or on the basis of differentiation between male and females have not been accepted because pre-constitution customs cannot be challenged as contravening Fundamental Rights.[9]
Moreover, in the case of Krishna Singh v. Mathura Ahir [10], the Supreme Court has taken the stand that personal laws are immune from being challenged under Fundamental Rights which do not touch upon these laws. Personal laws fall outside the scope of fundamental rights. In the case of Lakshmi v. Kalim Singh[11], a marriage between Kshatriya and Brahmin were held to be prohibited without considering the distinction between anuloma and pratiloma marriage.
During the British period, the pratiloma marriage was considered invalid in all schools of Hindu Law, but the anuloma were valid in Bombay, Assam, and Bengal. In the case of Natha v. Mehta Chotalal[12], Bombay High Court after considering the Hindu Law as administered in Bombay Presidency anuloma marriages between members belonging to two different castes was held valid. In this case marriage between a Brahmin and Sudra women was held valid and the son born out of that union was entitled to succeed to his father’s brother’s estate for a tenth share.
The judicial opinion was contradictory in relation to the validity of inter-caste marriage, but this difficulty has been removed after the Hindu Marriage Validity Act of 1949 which states no marriage among different caste of Hindus can be held invalid provided the marriage was according to Hindu rites. The act gives a retrospective effect to the validity of inter-caste marriage. Inter- sub-caste marriage was validated by the Hindu Marriage (Removal of Disability) act, 1946. Finally, in the case of Lata Singh v State of Uttar Pradesh[13], the Supreme Court observed that inter-caste marriage are perfectly valid marriages. This case arose out of disturbing news item published in the media where young men and women solemnized inter-caste marriage are being targeted by members of either or both communities. The Supreme Court has held that people perpetrating such violence and harassment should be severely punished.[14]
MARRIAGE CEREMONY – SAPTAPADI
The status of husband and wife is constituted by the performances of the marriage rites, whether prescribed by the sastras or by custom. The Sastraic rites observed by the three regenerate caste can be and are ordinarily observed by the fourth caste also, either with or without mantras.[15]Asvalayana Grihyasutra recognizes that the customs of the different countries and of villages should be observed at weeding though it gives the common form of marriage rites. The performance of the homam, the Panigrahana or taking holds of the bride’s hand going round the fire with Vedic mantra, the treading on the stones, and the seven steps or Saptapadi- these are the more important rites mentioned by it.[16] The marriage becomes complete and irrevocable on the completion of the saptapadi or ceremony of seven steps, and from that moment, the wife passes into her husband’s gotra.[17]
CONSTITUTIONAL VALIDITY
Saptapadi means taking of seven steps by the bridegroom and bride together before the sacred fire. If there are certain religious ceremonies which are necessary for the solemnization of marriage, the observance of such ceremonies cannot be overlooked by the application of the Doctrine of factum valet. Out of all four customs i.e. kanyadana, panigrahan, vivahahoma and saptpadi, saptpadi is absolutely necessary for all Hindus.
In the case of Modi v Modi[18], it has been held that vivaha homa is an essential ceremony. The presence of a priest is not necessary. But, it is essential that the ceremony of saptpadi should be performed before the sacred fire amidst the chanting of holy mantras.
Madras High Court in case of Deivani v Chindavdram[19], after examining the text came to the conclusion that there are two essential ceremonies necessary for the performance of Hindu marriage: one, a secular ceremony, viz., the gift of the girl or kanyadanam, and the other a religious ceremony, viz., panigrahana and aptpadi.
However, if a customary ceremony is prevalent on the side of either party, its performance will be enough for the validity of the marriage. In case of Rabindra Nath v State[20], it was held that customary rites and ceremonies to be accepted must be shown that such custom had been followed definitely from ancient times and that the members of the caste, community or sub-caste, had recognized such ceremony an obligatory.
Moreover, in the case of Neelavva Somnath Tarapur v Division Controller KSRTC, Bijapur[21], it was held that Customary ceremony may not include anyone of the sastric ceremonies. Saptapadi is a shastric ceremony and not essential for every Hindu weeding. There can be a customary ceremony.
Performance of a marriage ceremony is a must in order to validate the marriage. Saptapadi is an essential ceremony of marriage but if custom allows to the contrary then the custom of that community shall prevail and in such case marriage without the performance of saptapadi shall be valid. But living together as husband and wife without performing the essential ceremony or under any established custom would not confer the status of husband and wife. [22]
AGE OF WOMEN FOR MARRIAGE
In Vedic time, adult marriage appears to have been common, in the Sutras and later periods, child marriage, so far as the bride was concerned, become normal; but the husband was as before an adult generally. According to Manu(IX, 94) “A man, aged thirty years, shall marry a maiden of twelve who pleases him, or a man of twenty-four a girls of eight years of age; if (the performance of) his duties would (otherwise) be implied, (he must marry) sooner.[23]For all practical purposes, this means the attainment of majority under Hindu law, which is the completion of the fifteen years as interpreted by the Bengal school, and the completion of the sixteen years as interpreted by Mitakshara School.[24] According to Kautilya’s Arthasastra, the age of discretion was 12 for girls and 16 for boys. Children of any age can according to Hindu Law be validly married. The marriage of Hindu children is, therefore, the result of an arrangement between the parents and the children themselves exercises no volition.[25]
CONSTITUTIONAL VALIDITY
Child marriage is a gross violation of human rights of children. Child marriage is both a cause and consequence of gender violence thus forming a vicious circle of perpetual inequality. The judicial decisions are no different in approach and are much dependent on the doctrine of factum valet that accord validity to the child marriage emphasizing more on the dictate of the Hindu religious scripture and personal laws.
However, in the case of VenkatacharyaluvRangacharyalu[26], Muthuswami Aiyar and Shephard, JJ., observed: “ It is not a mere contract in which a consenting mind is indispensable. The person married may be a minor or even of unsound mind, and, yet if the marriage rite is duly solemnized, there is a valid marriage. In Naumi v Narottam[27], the High Court of Himachal Pradesh held that child marriage is valid as it is neither void nor voidable.
Child marriage is a violation of constitutional commitment contained in the directive principles of state policy under Art 39(f). the Prohibition of Child Marriage Act, 2006, provides for the prohibition of solemnization of child marriage.
The High Court of Andhra Pradesh decision in P.A. Sarramma v. G. Ganpatalu[28]is considered to be a landmark and revolutionary decision as it was explicitly ruled by the court that child marriage is void ab initio and in such event, the parties need not go to the court for getting it declared null and void.
Originally according to the Hindu Marriage Act, 1955, the age provided for the bridegroom was 18 years and for the bride was 15 years. Though where the bride was below 18, the consent of her guardian was necessary. The Child Marriage Restraint ( Amendment) Act, 1978, has raised the minimum age fixed for marriage to 21 years in case of bridegroom and 18 years in case of the bride.[29]
PROPERTY RIGHTS OF WOMEN
Hindu women just like women in any other religion have not been given rights equivalent to their male counterparts under the ancient Hindu law. In a patriarchal society, woman has always been treated as a secondary member who is not eligible to give opinions in the matters of joint family and are always to be governed by their male relations. As is clear from the lines of Manu quoted above. Before marriage, a girl has to obey her father, after marriage her ownership is transferred to her husband and she has to obey him. After the death of her husband, she becomes a widow and she comes under the control of her son.
CONSTITUTIONAL VALIDITY
But many praiseworthy attempts have been made in the British era as well as in the post-independence period to uplift the status of Hindu women especially in the field of property rights. Enactments such as: (1) Women’s Right to Property Act, 1937; (2) Hindu Succession Act, 1956; (3) Changes brought in women property rights through State Amendments in the Hindu Succession Act, 1956; (4) 174th Law Commission Report,2000; and (5) Hindu Succession (Amendment) Act have almost bridged the gap between and brought at par the property rights of women with men.
DIVORCE AND REMARRIAGE
Divorce was unknown to general Hindu law as marriage was an indissoluble union of the husband and wife. Manu has declared that a wife cannot be released from her husband either by sale or by abandonment, implying that the marital tie cannot be severed in any way.[30]Hindu marriage being a sacrament, once performed before the nuptial fire with the sacred text, become irrevocable on the completion of the ceremony of taking seven steps by the couple. There is no evidence as to the practice of divorce as such during the Vedic and Post Vedic periods. It was a holy union of mind, body, and soul of the spouses and, it was believed that even death did not put an end to it. According to Apastamba if the solemn vow of marriage is transgressed both husband and wife certainly go to hell. Hindu marriage was regarded as an eternal and sacred bond which united the husband and wife for the performance of their religious sacrifices. Dissolution of marriage was thus not contemplated by the sastra, for it was un-dharmic, unrighteous and sinful. It, therefore follows that the textual Hindu law did not recognizes divorce. But was approved among certain low class and tribal community on the ground of unchastity of wife.
Re-marriage of a widow was apparently permitted in the Vedic age. Kautilya’s Arthassastra recognizes the re-marriage of women in certain cases or under certain condition.[31] This seems to have taken the form of the marriage of the widow to the brother or other near kinsman in order to produce children. But Manu disapproves of divorce and re-marriage. He says, “the husband is declared to be one with the wife. Neither by sale nor by repudiation is a wife released from her husband. Once only a maiden is given in marriage and once does a man say, ‘I will give’, this is done only once[32]. According to the sastra a woman was expected to lead a life of chastity and self-denial and was not to mention even the name of another man after the death of the husband[33]. However, Narada, Parasara, and Vasishtha authorize a woman to take another husband in five cases i.e., when her husband is lost and dead when he becomes a religious ascetic, when he is impotent and when he become expelled from caste[34].
CONSTITUTIONAL VALIDITY
The present Hindu Marriage Act, 1955 has introduced vital and dynamic changes in the Hindu law of marriage and divorce. however, “even if the act seems to break violently with the past, it has to be conceded that it is characteristics of the age which is of the fast-changing social, economic, and political theories. Anyway in our opinion existence of the practice of divorce is not a matter of pride for any society for the sake of which people should make effort to dispel the laudable theory of perpetuity of marriage in ancient Hindu law.[35] This viewpoint finds support from a Supreme Court judgment of Kollam Chandra Sekhar v. Kollam Padma Latha[36], where the court observed that “Marriage is highly revered in India and we are a nation that pride itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad time can bring with it terrible illness and extreme hardships. The partner in a marriage must weather these storms and embrace the sunshine with equanimity.”
Hindu Marriage Act 1955 has laid down clear provision for divorce under certain circumstances. Section 13 provides the circumstances in which the right to divorce accrues. Section 13-B deals with the divorce with mutual consent. Section 15 lays down the limitations on the right of divorced persons to marry again.[37] In the case of Ishwar Singh v. Smt. Hukam Kaur[38], it was held that mere severance of all connection with wife because of his ill-health and allowing her to remarry any person she likes cannot amount to divorce within the meaning of section 13 of the act, because a decree of divorce which could result in the dissolution of a solemnized marriage has to be obtained by one of the two parties on presentation of a petition from a competent court. The remarriage of the widow had been validated and legalized by the Hindu Widow’s Remarriage Act, 1856. It is valid and legal under the provisions of Hindu Marriage Act, 1955.
Conclusion:
Customs play important role in Hindu law. Hindu law originates from custom and convention. As time passed the original body of customs were redefined and reshaped by the great sages and the smritis took the place of unrecorded custom. Custom signifies a rule which is a particular family or in a particular class or district has from long usage obtained the force of law. Sometimes these customs are rigid and against the constitution, in such a circumstances judiciary play a vital role in interpreting those customs. Customs which are irrelevant with the changing need of society are invalidated although many customs are still prevalent in our country. On the basis of these customs, certain laws are codified in order to remove the drawbacks of the prevalent practices. For example, child marriage was prevalent in India, which had been abrogated by various legislation.
Author- Jata Shankar
[1] Mayne’s, Hindu Law and Usage89 (Bharat Law House, New Delhi, 16th edn. 2012)
[2] Ibid
[3] B. M. Gandhi Family Law, Vol. I, 80 (Eastern Book Company, Lucknow, 1st edn., 2012)
[4] Ibid
[5] R. K. Aggarwal Hindu Law ,40 (Central Law agency, Allahabad, 25th edn., 2017)
[6] Supra Note 1 at 99
[7] Supra Note 1 at 149
[8] Paras Diwan, Modern Hindu Law 93 (Allahabad Law Agency, Faridabad, 23rd edn., 2017)
[9] Gurudyal Kaur v. Mangal Singh, AIR 1968 P & H 396
[10] AIR 1980 SC 707
[11] (1900) 2 Bom LR 128
[12] (1931) 55 Bom 1
[13] AIR 2006 SC 2522
[14] Supra Note 8 at 94
[15] Supra Note 1 at 144
[16] ibid
[17] Venkatacharyulu v Rangacharyulu (1891) 14 Mad 316,319
[18] 1975 Cr LJ 208
[19] 1954 Mad 65
[20] 1969 Cal 58
[21] 2002 Kant. 347
[22] Surjit Kaur v Garja Singh, AIR 1994 SC 135
[23]http://www.sacred-texts.com/hin/manu/manu09.htm (visited on 21/11/18 at 1935 hours)
[24] Supra note 1 at 130
[25] Ibid.
[26] (1890) 14 Mad 316
[27]AIR 1963 HP 15
[28] AIR 1975 AP 193
[29] Supra Note 5 at 49
[30] Ibid
[31] Supra Note 1 at 99
[32] Manu IX, 47
[33] Manu V, 157
[34] Manu V, 162
[35] Tahir Mahmod, Principle of Hindu law, 135 (Universal law Publishing Co., New Delhi, 2014 edn.)
[36] (2014) 1 SCC 225
[37] Hindu Marriage Act, 1955
[38] AIR 1965 All. 464