Foreign Law Specialist
Custom is recognized as a major source of law under the
Indian legal system. Article 13(1) of
The Fifth Schedule provides for
the administration of scheduled areas and scheduled tribes in the states
outside the northeastern areas of
It was only with the enactment of the Panchayat (Extension to Scheduled Areas) Act, 1996, 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.
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 “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.”
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 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.” According to advocate D. H. Chaudari,
[i]n a vast country like
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.”
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.
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.” 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.
W.H. Rattigan, Customary Law in
Marc Galanter, The Aborted Restoration of “Indigenous” Law in
P.K. Menon, The Traditional Hindu Law in
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
Law and Customary Law in
Syed Tassadque Hussain, Customary Law and Indian Constitution – With 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
C. Van Vollenhoven, Aspects of the Controversy on Customary
Principles of Hindu Law – Mulla (Satyajeet A. Desai ed., 17th ed. 2007), LC Call No. KNS479 .M85 2007, http://lccn.loc.gov/2008331861.
Law During the British Colonial Period
Mark Baker, The Politics of Knowledge: The Case of British Colonial Codification of
“Customary” Irrigation Practices in Kangra, 21
on the Punjab Codification of Customary Law Conference (September 1915),
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.
Land and Tribal Law
Apoorv Kurup, Tribal Law in
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).
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.
& P.M. Bakshi, Customary Law and Justice in the Tribal Areas of Meghalaya
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
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.
Kumar Bandyopadhyay, Tribal Situation in Eastern India – Customary
Law Among Border Bengal Tribes (
Bhowmick, Customary Law of Austric-Speaking Tribes (
L.K. Mahapatra, Customary Rights in Land and Forest and the
State, in Tribal and Indigenous
and Forest Rights of the Tribals Today (R.M. Sarkar ed.,
M. Gangte, Customary Laws of Meitei and Mizo Societies of Manipur (
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.
Arora, Forest and Wildlife Laws and Rights of Indigenous People (
Hope India Publications, Gurgaon, 2009), LC Call No. KNS2107.M56 A97 2009, http://lccn.loc.gov/2010318514.
Neishoning Koireng, Unwritten Customary Law of North
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.
Fernandes, Melville Pereira & Vizalenu Khatso, Customary Laws in North East
India: Impact on Women (National Commission for Women,
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).
K. Ishwaran, Customary Law In Village
Bhandari, Tribal Marriages and Sex Relations – Customary Laws of Marriage
in Bhil and Garasia Tribes (
Customary Laws and Women in Manipur (Jyotsna Chatterji ed., 1996), LC Call No. KNU1551.9 .A85 1995, http://lccn.loc.gov/96900939.
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.
Foreign Law Specialist
 B.J. Krishnan, Customary Law, in Seminar (Aug. 2000), available at http://www.india-seminar.com/2000/492/492%20b.%20j.%20krishnan.htm.
 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.
 Panchayat (Extension to Scheduled Areas) Act, 1996, http://rajbhavan.maharashtra.gov.in/pdf/pesa_1996.pdf.
 Kurup, supra note 7, at 91.
 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).
Hindu Marriage Act, No. 25 of 1955,
 D.H. Chaudari, The Hindu Marriage Act 1955 at 61 (3rd ed. 1966).
 T.P. Gopalakrishnan, Hindu Marriage Law 46 (2d ed. 1959).
 Satyajeet A. Desai, Principles of Hindu Law 663 (7th ed. 2000).
 Hindu Marriage Act § 29.
Last Updated: 07/15/2013