CHANAKYA NATIONAL LAW

UNIVERSITY

THE FINAL DRAFT FOR THE FULFILMENT OF THE PROJECT OF LEGAL ENGLISH
ON:

CUSTOMARY LAWS IN INDIA

SUPERVISED BY – Dr. Pratyush Kaushik

SUBMITTED BY- Vibhuti Sharma
ROLL NO. – 1772
1st year B.A.LL.B. (Hons.)
 TABLE OF CONTENTS

ACKNOWLEDGEMENT
1. INTRODUCTION
 Objectives of the study
 Research Methodology
 Hypothesis
 Research Questions
2. BACKGROUND OF CUSTOMARY LAWS IN INDIA
3. ROLE PLAYED BY CUSTOM IN HINDU PERSONAL STATUS LAW
4. PROCESS OF CUSTOM TURNING INTO LAW
5. CONCLUSION
ACKNOWLEDGEMENT

Writing a project is one of the most difficult academic challenges I have ever faced. Though this project
has been presented by me but there are many people who remained in veil, who gave their support and
helped me to complete this project. First of all I am very grateful to my subject teacher Dr. Pratyush
Kaushik without the kind support of whom and help the completion of the project would have been a
herculean task for me. He took out time from his busy schedule to help me to complete this project and
suggested me from where and how to collect data. I acknowledge my family and friends who gave their
valuable and meticulous advice which was very useful and could not be ignored in writing the project. I
want to convey most sincere thanks to my faculties for helping me throughout the project. Thereafter, I
would also like to express my gratitude towards our seniors who played a vital role in the compilation of
this research work. I would also like to express my gratitude towards the library staff of my college which
assisted me in acquiring the sources necessary for the compilation of my project. Last, but not the least, I
would like to thank the Almighty for obvious reasons.

Vibhuti Sharma
DECLARATION

I hereby declare that the work reported in the BA LL.B (Hons.) Project Report entitled “Problems of
Deprived Sections of Society: A socio-legal case study of MP” submitted at Chanakya National Law
University, Patna is an authentic record of my work carried out under the supervision of Dr. Sangeet
Kumar. I have not submitted this work elsewhere for any other degree or diploma. I am fully responsible
for the contents of my Project Report.

Vibhuti Sharma
RESEARCH METHODOLOGY:

AIMS AND OBJECTIVES OF THE STUDY

The researcher will do the research:-

1. Customary Laws in India.
2. To study about the formations process of Customs to law.

Method of Research
The researcher has relied upon the doctrinal method of research for a comprehensive study on
the subject. Various articles, journals and books etc. are the main sources of study. Also applied
is the non- doctrinal method of research to conduct into interviews with eminent persons in the
field to gain a deeper understanding on the issue.

HYPOTHESIS

1. Custom is an integral constituent in the Indian as well as the International legal

systems. Unlike statutory law, customary laws come into sight from the community
and command social acceptance and observance or compliance.

2. Custom has no existence and enforcement outside statute law and to have colour
of a rule of law it has to be discovered, asserted and sanctified by the jury.
REVIEW OF LITERATURE

The researcher focuses on obtaining information from both the available sources; they are
(1) Primary sources of data.
(2) Secondary sources of data.

 Primary sources of data include first-hand information available, like case laws, journals, district plan
goals, etc. and,
 Secondary sources include magazines, journals, etc.

METHODS OF DATA COLLECTION

 For the purpose of research work, the researcher has done doctrinal and non-doctrinal research
methods. In Doctrinal research method, the researcher has collected information through library study,
books and through surfing the web. In Non-Doctrinal research method, the researcher has collected
information by conducting interview and questionnaire schedule methods.
CHAPTERISATION:

CHAPTER 1: INTRODUCTION

Custom, in simple terms, means an established pattern of behaviour and a uniform conduct observed by
the people living in a society or a particular area for a long period of time.

When such practice is accepted by law or given legal recognition, it becomes a codified legislation known
as customary law. The customary laws provide a wealth of information about the customs and usages
observed in a particular community or society.

It is not a single body of law but is an adaptive, flexible, evolving body of norms and rules governing the
behaviour of communities over long periods of time. Customs are usually characterised as ancient,
certain, reasonable and invariable. Jurisprudentially, there emerge two distinct frameworks namely – law
and custom.

The codification and legal recognition of these customs is important. The co-existence of customary
practices and formal law is not peaceful but subject to conflicts and contradictions with adverse impact not
only on the societal relations but also the working of the legislature in the effective implementation of the
laws.

This is because law in action may be quite different from law in books. Customs are not clearly defined
and are not universally applicable and in their actual operation adapt themselves to the socio-political
contours of society.

Moreover customs and practices followed in one particular community may differ from those followed in
another leading to conflicts with regard to the statutory laws.

Thus customary laws being area specific may lead to overlapping of multiple laws and continuous
amendments may be required to restore their place in the legal structure.

Customs occupy a very prominent place in modern India, and are recognized by the Parliament and the
legislatures as valuable in the administration of law and justice. The Constitution of India treats customary
law on the same lines as other branches of civil law.
According to Article 13, the term ‘law’ includes ‘customs’ and ‘usages’ having the force of law. But it
cannot infringe any of the fundamental rights conferred by part III of the Constitution.

Such laws can be taken judicial notice by the courts under the Indian Evidence Act, 1872. Under The
Indian Easements Act, 1882, an easement may be acquired in virtue of a local custom. For example, a
customary right of way on the part of a certain group of people to use a piece of land not theirs as a
pathway.

Customs also occupy a prominent place under international law. The Convention on Biological Diversity
(CBD) lays down that nations should respect, preserve and maintain knowledge, innovations and
practices of local communities relevant for conservation and sustainable use of biodiversity.

The Rio Declaration, Agenda 21, and Forestry Principle also encourage the promotion of customary
practices conducive to conservation. Likewise International Declaration on Human Rights directs the
governments to grant basic human rights to people.

Custom is an integral constituent in the Indian as well as the International legal system. Unlike Statutory
law, customary laws come into sight from the community, and command social acceptance and
observance or compliance. However no custom will be legally recognized if it is opposed to the principles
of justice, equity and good conscience.

Custom has no existence outside statute law and to have colour of a rule or law it has to be discovered,
asserted and sanctified by the judiciary.

Custom in law is the established pattern of behavior that can be objectively verified within a
particular social setting. A claim can be carried out in defense of "what has always been done and
accepted by law." Related is the idea of prescription; a right enjoyed through long custom rather
than positive law.[1]

Customary law (also, unofficial law) exists where:

1. A certain legal practice is observed and

2. The relevant actors consider it to be law (opinio juris).1

1 "Prescription", The Free Dictionary by Farlex. Accessed: June 28, 2014.

Customary laws deal with standards of community that have been long-established in a given
locale. However the term can also apply to areas of international law where certain standards
have been nearly universal in their acceptance as correct bases of action - in example, laws
against piracy or slavery (see hostis humani generis). In many, though not all instances,
customary laws will have supportive court rulings and case law that has evolved over time to
give additional weight to their rule as law and also to demonstrate the trajectory of evolution (if
any) in the interpretation of such law by relevant courts.

LAW OF INDIA

Law of India refers to the system of law in modern India. India maintains a hybrid legal
system with a mixture of civil, common law and customary or religious law within the legal
framework inherited from the colonial era and various legislation first introduced by the British
are still in effect in modified forms today. Since the drafting of the Indian Constitution, Indian
laws also adhere to the United Nations guidelines on human rights law and the environmental
law. Certain international trade laws, such as those on intellectual property, are also enforced in
India.

Indian personal law is fairly complex, with each religion adhering to its own specific laws. In
most states, registering of marriages and divorces is not compulsory. Separate laws
govern Sikhs, Hindus, Muslims, Christians, and followers of other religions. The exception to
this rule is in the state of Goa, where a uniform civil code is in place, in which all religions have
a common law regarding marriages, divorces, and adoption. In the first major reformist judgment
for the last decade, the Supreme Court of India banned the Islamic practice of "Triple Talaq"
(divorce by uttering of the "Talaq" word thrice by the husband).[2] The landmark Supreme Court
of India judgment was welcomed by women activists across India.[3]
As of January 2017, there were about 1,248 laws.[4] However, since there are Central laws as well
as State laws, it is difficult to ascertain their exact numbers as on a given date and the best way to
find the Central Laws in India is from the official website. 2

22. Triple talaq: India's top court bans Islamic practice of instant divorce". CNN. 18 May 2017
3. "India court bans Islamic instant divorce in huge win for women's rights". The Guardian.
4. http://www.liiofindia.org/in/legis/cen/num_act/
BACKGROUND OF CUSTOMARY LAWS IN INDIA

Ancient India represented a distinct tradition of law, and had a historically independent school of
legal theory and practice. The Arthashastra, dating from 400 BC and the Manusmriti, from 100
AD, were influential treatises in India, texts that were considered authoritative legal guidance.
[5]
Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.[6]
Early in this period, which culminated in the creation of the Gupta Empire, relations with ancient
Greece and Rome were not infrequent. The appearance of similar fundamental institutions of
international law in various parts of the world show that they are inherent in international society,
irrespective of culture and tradition.[7] Inter-State relations in the pre-Islamic period resulted in
clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of
customary law embodied in religious charters, in exchange of embassies of a temporary or semi-
permanent character.[8]
With the advent of the British Raj, there was a break in tradition, and Hindu and Islamic law
were abolished in favour of British common law.[9] As a result, the present judicial system of the
country derives largely from the British system and has few, if any, connections to Indian legal
institutions of the pre-British era.[10]