Law Library Stacks

Back to Foreign and International Law

Introduction

Custom is recognized as a major source of law under the Indian legal system. Article 13(1) of India’s Constitution provides that when the Constitution entered into force, all previous laws that were inconsistent with the Constitution were considered void.[1]  The Constitution defines “law” to include “ custom or usage having in the territory of India the force of law.”[2]  The Courts of India have recognized custom as law only if the custom is (1) “ancient or immemorial” in origin, (2) “reasonable in nature and continuous in use,” and (3) “certain.”[3]  The Courts have interpreted “ancient or immemorial” to mean that for a custom to be binding it “must derive its force from the fact that by long usage it has obtained the force of law.”[4]  A custom also “derives its validity from being reasonable at inception and present exercise.”[5]  Lastly, a “certain” custom is one that is “certain in its extent and mode of operation” and invariable.[6]

India’s Constitution also provides protection of tribal indigenous communities and their customs through Articles 244, 244-A, 371-A, and the Fifth and Sixth Schedules.  The Fifth and Sixth Schedules provide for a system of “Scheduled Areas” or tribal regions, which are designed to protect the interests of listed indigenous communities or “Scheduled Tribes.”  

The Fifth Schedule provides for the administration of scheduled areas and scheduled tribes in the states outside the northeastern areas of India.  The Sixth Schedule contains provisions for the administration of tribal areas in the northeastern states of India and grants tribes considerable administrative autonomy, endowing each regional administrative unit with its own regional council, and each district level unit with local district councils.  Autonomous councils are invested with both executive and legislative powers, subject to the approval of the provincial governor, to “make laws with respect to a variety of subjects,” and even exercise “judicial authority through traditional legal systems embedded with certain features of federal law.”[7]  Under the Fifth Schedule, on the other hand, tribal affairs are administered by the provincial government.  

It was only with the enactment of the Panchayat (Extension to Scheduled Areas) Act, 1996,[8] that tribal communities were granted a limited level of local governance at the village level and that certain “political, administrative and fiscal powers” were devolved to local village assemblies or panchayat.[9]

In addition, other laws are in force to protect the customary rights of tribal communities.  The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006[10] “provides for the recognition, vesting and securing of individual and community tenure rights to all forest dwelling Scheduled Tribes and Traditional Forest Dwellers on all forest lands.”[11]

Back to Top

Role Played by Custom in Hindu Personal Status Law

Custom plays a significant part in Hindu law and is accepted as part of the Indian legal system.  A variety of Hindu tribal customs concerning personal status and inheritance are also recognized despite the codification efforts of the central government.  Section 2(2) of the Hindu Marriage Act[12] and the Hindu Succession Act have left the door open for the recognition of tribal customary laws and practices of “Scheduled Tribes.”

Customary Hindu practices in marriage and divorce that are outside the traditional norm are also recognized under Indian law.  Traditional Hindu law recognizes eight forms of marriage, of which three—Brahma, Asura, and Gandharba—are the most prevalent.  However, a marriage in a form “which is out of practice or obsolete is not necessarily prohibited by Hindu law.”[13] According to advocate D. H. Chaudari,

[i]n a vast country like India, with so many castes living in so many different places, multifarious forms of marriage allowed by custom have come into existence.  These customary forms of marriage may be perfectly valid even though they do not strictly come within the definitions of any of the eight forms.[14]


According to Hindu law, ceremonies “of some sort are absolutely essential.”  For example, “[c]ourts have attached great importance to the performance of Saptapathi or the ceremony of seven steps which is considered to be the most important of ceremonies.”[15]

However, it should be noted that the performance of ceremonies other than those referred to above are recognized by the Indian Courts where the ceremonies are allowed by the custom of the community or caste to which the parties belong.[16]

Divorce is not recognized by general Hindu law.  Traditionally marriage, from the Hindu legal standpoint, “creates an indissoluble tie between the husband and the wife.  Neither party, therefore, to a marriage can divorce the other unless divorce is allowed by custom.”[17]  The Hindu Marriage Act modified this position, however, creating nine grounds for both husband and wife to claim divorce, and some additional grounds available to the wife alone.  According to section 29 of the Hindu Marriage Act, dissolution of a Hindu marriage can also be obtained through a valid custom.[18]

Back to Top

General Resources

Articles

W.H. Rattigan, Customary Law in India, 10 Law Mag. & L. Rev. 5th ser. 1 (1884–85), LC Call No. K12 .A936474, http://lccn.loc.gov/06020524 (available in HeinOnline). 

Marc Galanter, The Aborted Restoration of “Indigenous” Law in India, 1 Comp. Stud. in Soc. & Hist. 53 (1972) (available in JSTOR).

P.K. Menon, The Traditional Hindu Law in India – Transformation from Customary to Codified Law, 16 Korean J. Comp. L. 108 (1988), LC Call No. K11 O7, http://lccn.loc.gov/75644165 (available in HeinOnline). 

B.J. Krishnan, Customary Law, in Seminar (Aug. 2000), available at http://www.india-seminar.com/2000/492/492%20b.%20j.%20krishnan.htm.

Livia S. Holden, Custom and Law Practices in Central India: Some Case Studies, 23 S Asia Res., no. 2 (2003), available at http://www.law-in-action.de/include/texte/customandlaw%201%20.pdf.

Books

Family Law and Customary Law in AsiaA Contemporary Legal Perspective (David C. Buxbaum ed., 1968), LC Call No. LAW FAR EAST GEN 7 Buxb 1968, http://lccn.loc.gov/68118048.

Syed Tassadque Hussain, Customary Law and Indian ConstitutionWith Sant Ram Dogra’s Code of Tribal Custom (1987), LC Call No. KNS2000 .H87 1987, http://lccn.loc.gov/87903708.

M.P. Jain, Custom as a Source of Law in India, in Folk Law: Essays in the Theory and Practice of Lex Non Scripta (Alison Dundes Renteln & Alan Dundes eds., 1995), LC Call No. K282 .F65 1995, http://lccn.loc.gov/94000812.

C. Van Vollenhoven, Aspects of the Controversy on Customary Law in India, in Folk law: essays in the Theory and Practice of Lex Non Scripta (Alison Dundes Renteln & Alan Dundes eds., 1995), LC Call No. K282 .F65 1995, http://lccn.loc.gov/94000812.

Principles of Hindu LawMulla (Satyajeet A. Desai ed., 17th ed. 2007), LC Call No. KNS479 .M85 2007, http://lccn.loc.gov/2008331861.

Back to Top

Law During the British Colonial Period

Articles

Mark Baker, The Politics of Knowledge: The Case of British Colonial Codification of “Customary” Irrigation Practices in Kangra, 21 India J. Assoc. Himalayan Stud. 26 (2001), http://digitalcommons.macalester.edu/cgi/viewcontent.cgi?article=1431&context=himalaya.  

Books

Sripati Roy, Customs and Customary Law in British India (Calcutta, 1911), LC Call No. KNS469.5 .R69 1911, http://lccn.loc.gov/12000568.

Report on the Punjab Codification of Customary Law Conference (September 1915), (Lahore, 1915), LC Call No. KNU5544.93 .P86 1915, http://lccn.loc.gov/34008907.

Herbert Cowell, A Short Treatise on Hindu Law as Administered in the Courts of British India (2008), LC Call No. KNS479 .C693 2008, http://lccn.loc.gov/2008042289.

Back to Top

Land and Tribal Law

Articles

Apoorv Kurup, Tribal Law in India – How Decentralized Administration Is Extinguishing

Tribal Rights and Why Autonomous Tribal Governments Are Better, 7 Indigenous L.J. 87 (2008–09), LC Call No. K9 .N54, http://lccn.loc.gov/cn2003390026 (available in HeinOnline).

Books

Proceedings of the Seminar on Naga Customary Laws, Kohima, November 21–23, 1974 (Kohima, Directorate of Art & Culture, Gov’t of Nagaland, 1976), LC Call No. LAW INDIA NAGALAND 7 Proc 1976, http://lccn.loc.gov/85902486.

Kusum & P.M. Bakshi, Customary Law and Justice in the Tribal Areas of Meghalaya (Bombay, 1982), LC Call No. KNU2544.93 .K87 1982, http://lccn.loc.gov/83900928.

Tribal Ethnography, Customary Law, and Change (K.S. Singh ed., 1993), LC Call No. KNS3829 .T75 1993, http://lccn.loc.gov/93910178.

P.K. Sing, From Simplicity to Organized Complexity: with Special Reference to Tribal Customary Laws, in Tribes of India – Ongoing Challenges 355 (R.S. Mann. ed., 1996), LC Call No. GN635.I4 T7514 1996, http://lccn.loc.gov/96900898.

Aspects of Customary Laws of Arunachal Pradesh (Parul Chandra Dutta & Dwijendra Kumar Duarah eds., 1997), LC Call No. KNT46.7 .A86 1997, http://lccn.loc.gov/2002293391.

Bibhas Kanti Kilikdar, Customary Laws and Practices – The Riangs of Tripura (Agartala, Tribal Research Institute, Gov’t of Tripura, 1998), LC Call No. KNS439.R53 K55 1998, http://lccn.loc.gov/00371755.

Minoti Chakravarty-Kaul, Common Lands and Customary Law – Institutional Change in North India over the Past Two Centuries (1999), LC Call No. KNU5754.15 .C45 1996, http://lccn.loc.gov/96902125.

Pradip Kumar Bandyopadhyay, Tribal Situation in Eastern IndiaCustomary Law Among Border Bengal Tribes (Calcutta, 1999), LC Call No. KNS2562 .B36 1999, http://lccn.loc.gov/99936882.

P.K. Bhowmick, Customary Law of Austric-Speaking Tribes (Delhi, 2002), LC Call No. KNS3829 .B56 2002, http://lccn.loc.gov/2002299232.

L.K. Mahapatra, Customary Rights in Land and Forest and the State, in Tribal and Indigenous People of India – Problems and Prospects (Rabindra Nath Pati ed., 2002), LC Call No. GN635.I4 P385 2002, http://lccn.loc.gov/2003310077.

Land and Forest Rights of the Tribals Today (R.M. Sarkar ed., New Delhi, Serials Publications, 2006), LC Call No. GN635.I4 L37 2006, http://lccn.loc.gov/2006453949.

Priyadarshni M. Gangte, Customary Laws of Meitei and Mizo Societies of Manipur (New Delhi, 2008), LC Call No. KNS352 .M36 G36 2008, http://lccn.loc.gov/2007434268.

M. Gopinath Reddy, K. Anil Kumar & Naga Raju Chikkala, A Study of Forest Rights Act, 2006 in Andhra Pradesh – An Assessment of Its Major Features and Issues in Implementation Process (Hyderabad, Centre for Economic and Social Studies, 2009), http://lccn.loc.gov/2013315975.

Manju Arora, Forest and Wildlife Laws and Rights of Indigenous People (Institute of Constitutional and Parliamentary Studies, New Delhi, and

Hope India Publications, Gurgaon, 2009), LC Call No. KNS2107.M56 A97 2009, http://lccn.loc.gov/2010318514.

T. Neishoning Koireng, Unwritten Customary Law of North East India (Shillong, 2010), http://lccn.loc.gov/2011351045.

Jyothis Sathyapalan & M. Gopinath Reddy, Recognition of Forest Rights and Livelihoods of Tribal Communities – A Study of Western Ghats Region, Kerala State (Hyderabad, Centre for Economic and Social Studies, 2010), http://lccn.loc.gov/2013315961.

Walter Fernandes, Melville Pereira & Vizalenu Khatso, Customary Laws in North East India: Impact on Women (National Commission for Women, New Delhi), http://ncw.nic.in/pdfreports/Customary%20Law.pdf (last visited July 5, 2013).

Back to Top

Family Law

Articles

L. Carroll, Law, Custom, and Statutory Social Reform: The Hindu Widows’ Remarriage Act of 1856, in 20 Indian Econ. & Soc. Hist. Rev., no. 4, 363 (1983).

Books

K. Ishwaran, Customary Law In Village India, in Family Law and Customary Law in Asia: A Contemporary Legal Perspective 234 (David C. Buxbaum ed., 1968), LC Call No. LAW FAR EAST GEN 7 Buxb 1968, http://lccn.loc.gov/68118048.

Bhagwat Bhandari, Tribal Marriages and Sex Relations – Customary Laws of Marriage in Bhil and Garasia Tribes (Udaipur, 1989), LC Call No. DS432.B45 B39 1989, http://lccn.loc.gov/89905204.

Customary Laws and Women in Manipur (Jyotsna Chatterji ed., 1996), LC Call No. KNU1551.9 .A85 1995, http://lccn.loc.gov/96900939.

Back to Top

Natural Resources Law

M.S. Vani, Customary Law and Modern Governance of Natural Resources in India – Conflicts, Prospects for Accord and Strategies, in XIIIth International Congress Commission on Folk Law and Legal Pluralism, 7–10 April 2002, Chiang Mai, Thailand – Legal Pluralism and Unofficial Law in Social, Economic And Political Development – Collated Abstracts (Rajendra Pradhan ed., 2002), LC Call No. K236 .I58 2002, http://lccn.loc.gov/2008451685.

Back to Top

Tariq Ahmad
Foreign Law Specialist
July 2013


[2] Id. art. 13(3)(a).

[3] B.J. Krishnan, Customary Law, in Seminar (Aug. 2000), available at http://www.india-seminar.com/2000/492/492%20b.%20j.%20krishnan.htm.

[4] Id.

[5] Id.

[6] Id.

[7] Apoorv Kurup, Tribal Law in India – How Decentralized Administration Is Extinguishing Tribal Rights and Why Autonomous Tribal Governments Are Better, 7 Indigenous L.J. 95, available at https://tspace.library.utoronto.ca/bitstream/1807/17375/1/ILJ-7.1-Kurup.pdf.

[8] Panchayat (Extension to Scheduled Areas) Act, 1996, http://rajbhavan.maharashtra.gov.in/pdf/pesa_1996.pdf.

[9] Kurup, supra note 7, at 91.

[10] The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, http://www.forestrights.nic.in/doc/Act.pdf.

[11] Shawahiq Siddiqi & Shilpa Chohan, Legal Brief on Legal Preparedness for Achieving the AICHI Biodiversity Targets: India, Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and Rules, 2008, International Development Law Organization (IDLO), http://www.idlo.int/AichilawsSite/Docs/Target%2014%20-%20India%20Scheduled%20Tribes.pdf (last visited July 5, 2013). 

[12] Hindu Marriage Act, No. 25 of 1955, India Code (1993), vol. 20. 

[13] D.H. Chaudari, The Hindu Marriage Act 1955 at 61 (3rd ed. 1966). 

[14] Id.

[15] T.P. Gopalakrishnan, Hindu Marriage Law 46 (2d ed. 1959). 

[16] Satyajeet A. Desai, Principles of Hindu Law 663 (7th ed. 2000). 

[17] Id. at 666.

[18] Hindu Marriage Act § 29.

Back to Top

Last Updated: 03/26/2014