THIS ARTICLE WAS WRITTEN BY ANKITA C. DHABU A STUDENT OF NATIONAL LAW UNIVERSITY ODISHA.
The Hindu laws were based on Dharma, which in turn is the framework for the Smritis. The ancient laws given in the Smritis were based on traditional and honoured institutions and customs which were existent from time immemorial. The law could be found not only in the Smritis but also in the practices and usage which had prevailed under it.
Customs in the legal profession talks about customary laws which are in existence. As such, they are also sources of Hindu Personal Laws as it is also the basis of various scripts and scriptures. Section 3(a) of the Hindu Marriage Act 1955, the expressions custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. When there is a conflict between a custom and a text of the Smritis, the custom overrides the text. However, a custom cannot be valid if it is opposed to morality or public policy or to any express enactment of the legislature. The court in many cases has ruled that the marriage of a man with his daughter’s daughter came under the degrees of prohibited relationship as laid down in the Mitakshara which is to the effect that a man cannot marry a girl if their common ancestor being traced through his or father is not beyond the seventh degree in the line of ascent from or her or if their common ancestor being traced through the mother is not beyond the fifth degree in the line of ascent from him or her.
The Hindu laws not only govern Hindus but also Jains, Buddhists, Sikhs, Virashaiva, Lingayat or a follower of Brahmo, Prarthana or Arya Samaj.
APPLICATION OF HINDU PERSONAL LAWS, CUSTOMS AND HINDU MARRIAGE ACT, 1955
While applying Hindu Personal Laws as a whole, one has to take into consideration some assumptions. A Hindu family residing in a particular state of India is presumed to be governed by the law of the place in which it resides in.
However, the mere transfer, of a district to another presidency or state for administrative purposes, is not sufficient to affect the personal law of the residents in that district, unless and until it is shown, in the case of any resident there, that he had intended to change and has in fact changed his personal law
Again, when a Hindu family migrates from one state to another, the presumption is that it carries with it, its personal laws, that is, the laws and customs as to succession and family relations prevailing in the state from which it came.
However, this presumption may be rebutted by showing that the family has adopted the law and usage of the province to which it has migrated.
Custom can be defined as rule of a law which has been in force for a long period of time. As per Black’s Law Dictionary, customs is a practice that by its common adoption & long, unvarying habit has come to be the force of law. Legal customs are those which operate as a binding rule of law, independently of any agreement on the part of those subject to it. The custom must be ancient, certain, reasonable, and being in derogation of the general rules of law, must be construed strictly.
All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability governing rule of a particular locality.
In respect to family customs, customs binding inheritance in a particular family has long been recognized in India. Where members of a family admittedly governed by the Hindu law, set up a custom derogatory to that law, the burden lies upon them to prove the custom.
Section 5, Clauses (iv) & (v) of the Hindu Marriage Act states that in cases of prohibited relationships and sapindas, marriage can be allowed provided such marriages are sanctioned by the custom or usage governing both the parties.
According to the provision of the Hindu Marriage Act, Section 5, the parties marrying must be Hindus as defined by Section 2(c) of the Hindu Marriage Act which states-
“to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed”.
According to this section only two Hindus can marry each other under this act. The marriage will be a subject of different act if either of the parties is a non-Hindu or both of them are non-Hindus. A Hindu may be any person who is mentioned in section 2(3) of the act. It is not essential that the parties have to belong to the same caste or denomination of Hinduism. They may belong to different castes or sects. This section provides five circumstances of a Hindu marriage.
DEGREES OF PROHIBITED RELATIONSHIP AND SAPINDASHIP
The fourth clause of the section 5 of the Hindu Marriage Act, 1955 talks about the conditions for a Hindu marriage which states that the solemnization of marriage given that the two persons are not within the degrees of prohibited relationship.
To understand the provision we also have to look at section 3(g) of the Hindu Marriage Act, 1955 which gives us the extent of prohibited relationships.
Any marriage which is carried out against this provision is held null and void under Section 11 of the Hindu Marriage Act , and the punishment for the same is defined in Section 18 of the Hindu Marriage Act.
The main reasons behind these restrictions were two: firstly, to avoid genetic diseases that could be caused in the offspring when two people related by blood married; 45 and secondly, the Hindu joint family consisted of relations several degrees removed which was the normal condition of such society and in order to guard the chastity of Hindu girls in such family it became necessary to lay down these rules with religious rigour that they might deter any member of the family from entertaining the idea of marrying another member thereof.
Although the Act provides that any marriage falling within the scope of these prohibited relationships is void, such a marriage can be ratified if the prevailing customs and usages permit such a marriage.