Customs as Rules under Hindu Marriage Act, 1955

Customs play an important role as well as an important source in Hindu law. In the early society in Hindu law, customs were considered as the main source for its legal developments. In spite of the fact that Vedas and Smritis contained direct revelations from people of the olden days, even then, customs played an important role in its development. Customs are also important in Hindu law because it has its reference to the nature of Hindu law which is customary, that is, based on customs.

1. Section 3(a) of the Hindu Marriage Act, 1955 states that customs must be ancient to be considered valid. It is necessary that customs to be valid must be followed since time immemorial or should pass the test of antiquity. Courts have also recognized the validity of customs if they have been followed for generations and numerous years.
2. Customs should not be immoral. A custom that is immoral and against the principles of morality is void and is not considered as valid. Customs should not instigate any immoral behaviour and must be righteous.
3. A custom must not be opposed to public policy. Any custom that is against the general good and well being of society is held to be invalid and void. It should be in line with the well being of society at large.
4. Customs must not be unreasonable. A custom if unreasonable, is considered as void and must not be followed. Customs must not promote unreasonable behaviour or actions that may cause harm to anybody.
5. Customs must be fair and must promote social value, time and norms of the society. They must not be unjust to anybody. Customs must be clear and impartial.
6. Customs must be certain. They should be specific, clear and concise in terms. Any amount of vagueness will cause confusion, and thus the custom will be invalid. They should be uniform.
7. Customs must not be against any law, personal or statutory. The codification of Hindu law has cancelled and abrogated many customs previously followed in the Hindu law. Any custom that is against any law is illegal and void and therefore not to be followed.
8. Customs can also be discontinued. Family customs which are applicable to particular families may be discontinued due to reasons of social changes. Discontinuation of custom results at an end to the custom.
9. There are three kinds of customs, they are –
10. Local customs
11. Family customs, and
12. Caste customs
13. Local customs are those that are followed in a particular geographical locality, area, city or state. These customs are implemented due to the fact that they have been observed for a long time in a particular locality and have obtained the force of law.
14. Family customs are those customs that are performed in a particular family generation after generation for a very long time. For example, the customs followed during the time of marriages, death; birth followed in a family since a long time are the family customs of that family.
15. Caste customs are customs that are followed only in particular castes. These customs are unique to the caste, and the members of another caste do not follow the customs of a particular caste.
16. Numerous customs have been abolished after the codification of the Hindu law such as the sati system. Sati system used to be followed by Hindu women wherein when their husbands died, they would sacrifice themselves by sitting on the pyre of their deceased husband.
17. Codified Hindu Law has given an important place to the custom and usages and considered it as a parent of Hindu law, but it is limited to a certain extent as the customs have to be expressly proved or brought to the notice to establish it as law.
18. Custom under ‘Hindu Marriage Act 1955’ has been used in three situations. Firstly, the marriages can be solicited as per the customary tradition which is followed by the party. Secondly, divorce can be obtained by parties on the prevailing custom and usages. Thirdly, adoption can be done as per the customary rules.

Conclusion

Hindu Law is a law which is considered to be of divine nature as it is believed that it has been developed on the words of God, theories given by god. It is one of the most ancient laws and was written by various ‘Rishis’. There are various sources of Hindu law. Sources of Hindu law are divided into two categories, namely ancient sources and modern sources.

Ancient sources of Hindu law include shruti, smriti, commentaries, digests, and customs and usages. Modern sources include judgement and precedents, legislation, justice, equity and good conscience. Among the various ancient sources of Hindu law, custom and usages are regarded as one of the most important sources of Hindu law. Custom and usages have thus played a major role in developing Hindu law.