We have compiled case laws on customs as a source of law, to understand the importance of customs in Courts of Law. Customary usage reflects upon who we are, our roots, an irreplaceable part of our daily lives. In India, customs play a major role in the making of laws as well. Since we have personal laws in place, the law leaves scope for customary practices there as well. However, there are times when secular or personal laws contradict with customs. That’s when Courts show up in picture to settle the confusions, as reflected upon in the judgments hereunder.
Case Laws on Customs as a Source of Law
Supreme Court Case Laws on Custom
Mohd. Ahmed Khan v. Shah Bano Begum (1985)
This is the very famous case of Shah Bano Begum as portrayed in recent Bollywood movie “HAQ”. The major question here was the eligibility of a divorced wife to get maintenance under Section 125 of CrPC, which is not the norm beyond the Iddat period in Muslim laws. The Court discussed in detail the customary discharge of “payment of Mahr money” as against maintenance, and also whether a divorced Muslim wife was entitled to maintenance after Iddat.
Though the Apex Court in this case allowed payment of maintenance, the Rajiv Gandhi Govt. of the time reversed the same through Muslim Women (Protection of Rights on Divorce) Act, 1986. The Apex Court again changed the customary image in Shabana Bano v. Imran Khan (2009). The Court held that “even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry.”
Madhu Kishwar v. State of Bihar (1982)
The Supreme Court in this case discussed in detail the concept of customs in various tribes as regards the subject of inheritance. The Court however commented that “Though the customs of the tribes have been elevated to the status of law, obviously recognised by the founding fathers in Article 13(3)(a) of the Constitution, yet it is essential that the customs inconsistent with or repugnant to constitutional scheme must always yield place to fundamental rights.”
Mohammad Baqar v. Naim-Un-Nisa Bibi (1955)
The matter pertained to a property dispute where two daughters sought partition of their shares in their deceased father’s estate. A customary practice was claimed by their brothers that female heirs were excluded from sharing inheritance. The Court reiterated that the burden of proving customs in derogation of general law fell upon the party who set it up. The source of information regarding customs came from one of the defendants who at the time was 22 years old. Therefore, the Court also disregarded the same due to age, with the reasoning that “a statement as to custom from a person of that age cannot command much weight, as that must largely depend on his means of knowledge.” The Court found a statement of interested person “too slender” for supporting custom.
Thakur Gokalchand v. Parvin Kumari (1952)
In this case, though the Court refused to decide the matter based on customary practices, the Supreme Court laid certain general principles for dealing with matters of customary laws:
- The agricultural tribes of Punjab are governed by variety of customs regarding inheritance and other matters, departing from ordinary rules of Muslim or Hindu law.
- The person or class claiming so has to prove that such customs exist and that they are governed by such customary practices.
- A custom to be binding must derive its force of law through long usage, but English concept of long enough to defeat man’s memory should not apply to Indian conditions.
- Custom may be proved by general evidence of existence by members of tribe or family, naturally cognizant of its existence and non-controversial exercise, supported by public record.
- Though the contents of a Riwaj-i-am or similar compilation has no statutory presumption, the statements therein in support of custom are admissible to prove facts.
- On question of custom applicable to agriculturist, the one denying may show that the claimant drifted away from agriculture for urban life adopting trade, service, etc.
- Opinions of compiler of Riwaj-i-am based on intimate knowledge and investigation entitled to weigh.
