Joginder Singh Toor

CULTURE as encyclopedia Britanica explains is the quality in a person or society that arises from an interest in and an acquaintance with what is generally regarded as excellent in arts, letters, manners, scholarly pursuits a particular form or stage of civilization or that of a certain nation or period. It is sum total of ways of living built up by a group of human beings and transmitted from one generation to another.

Integrated pattern of human knowledge belief and behaviour that is both the result of and integral to the human capacity for learning and transmitting knowledge to succeeding generations is culture. This consists of language, ideals, beliefs, customs, taboos, codes, institutions, tools, techniques, works of art, rituals, ceremonies, and symbols. It has played a crucial role in human evolution allowing human beings, to adapt to the environment to their own purposes rather than depend solely on natural selection to achieve adaptive success. Every human society has its own particular culture or socio cultural systems. Variation among cultures is attributable to physical habitat and resources.

Custom on the other hand is usual way of acting in given circumstances. It is a perpetual habit of a community or people of a region. In legal parlance it is a long continued habit that is so established that it has the force of law. The custom is a group pattern of habitual activity, usually transmitted from one generation to the other. Custom applied to a community or to an individual implies more or less permanent continuance.

“A custom in order to be binding, must derive its force from the fact, that by long usage it has obtained the force of law” observes the Supreme Court of India, 1952-SC-231, Gokal Chand Vs Parvin Kumari,

The English rule that a custom in order that it may be legal and binding, must have been used long, that the memory of man runneth not to the contrary is not to be strictly applied to Indian conditions.
Hindu Law defines custom as “the expression signifying any rule which having been continuously and uniformly observed for a long time, has obtained the force of law, among Hindus in local area, tribe, community group or family” provided that the rule is certain and not unreasonable or opposed to public policy, and provided further that in the case of a rule applicable only to a family, it has not been discontinued by the family.

On the annexation of Punjab by the British in 1849, the Governor General while constituting the Board of administration gave assurance to the people of the Punjab that the native institutions and practices shall be upheld as for as they are consistent with the distribution of justice to all classes. There was no written record of the customs prevailing among various tribes. Their customs differed from Hindus or Mohammdans. Customary laws were enforced by village or tribe panchayats. Some customs prevalent at the time of settlement of lands and its records were recorded in the Wajab-ul-Arz of the village describing Rawaj-e-Am. There was a presumption attached to the Rwaj-e-am recorded by Settlement Officers as to the prevailing customs “but the presumption of correctness attaching to the Rwaj-e-am could be rebutted if it could be shown that it effects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities”. AIR 1952-SC-231).

As a result, the Punjab Law Act, 1849 enacted by the British on the advent of their rule in the Punjab provided that the primary rule of decision in all questions relating to the matters specified therein shall be custom, where a custom exists and that the Hindu and Mohamdan law shall only be applied where no such customary rule prevails. It further provides when a question of succession arises, it is the customary law that must be looked into, in the first instance; it is only when there is locuna the personal law should be applied. (1931)135-Ind case 54).

Custom in Punjab is primarily Tribal and not local (1929) Ind. Case 768. There is no uniform custom in the whole of Punjab. Custom is founded neither on common sense nor on reason. Custom though not always illogical is generally fair and reasonable (17 PR 1919 FB).

Community Behaviour has given rise to unreasonable and unfair customs such as eldest son’s right to larger share as ``Haq Sardari``. Father’s rights to make unequal distribution of property among sons but not to totally disinherit. Pagvand rule, i.e. division of property among all the sons irrespective of number of sons from different wives, ignoring daughters, Chundevand rule i.e. division of property among sons equating the share of wives irrespective of the number of their respective sons i.e one son from a wife, 4 sons from another wife will take half-half the division is based on number of wives and not on number of sons. Right of representation by females in succession in absence of near male heirs existed in Kharkouda in Rohtak region among Sayads but not in other parts or other castes. Widowed daughter-in-law is not ordinarily entitled to succeed, widows got life estate only, Karewa or chadarandazi, was recognised but it led to loss of earlier husband`s estate on re-marriage.

Similarly ancient Hindu Law, arising out of ancient scriptures, practices or customs, gave rise to conflicting legal notions such as an illegitimate son of a Hindu woman is, under the Hindu law, entitled to maintenance even if he be result of casual or adulterous intercourse. He could claim maintenance against his father during his life time and not of his separate or self acquired property after his life time. (AIR 1950-HP-12). An illegitimate child could claim maintenance from his father both under Hindu law and upon general principles (13-CWN-150). Therefore a custom in a Hindu family to grant maintenance to illegitimate sons was not unreasonable.

Under Mitakshra Hindu law an illegitimate son was entitled to maintenance as long as he lives, in recognition of his status as a member of his father’s family. (AIR 1953-SC-433).

The question whether an illegitimate son of a Hindu from a Sudra by a continuous concubine is a member of a family was answered in affirmative (ILR 1931) 35 Mad-1(PC) but Hindu law does not apply to an illegitimate son of a Hindu from a Mohamdan concubine and he was not entitled to maintenance even on general principles.

As the custom and usages, although followed for a period that runs beyond memory, and had acquired the force of law but its variable applicability, contradictory notions, discriminatory nature rendered them unreasonable. The law should not be unjust to one and give disproportionate benefit or protection to other section of Society….A statute which when enacted was justified may, with the passage of time, become arbitrary and unreasonable. (AIR 1997 SC 602).

The Hindu Code bill consisting of the law relating to marriages, succession, maintenance, adoption supercede the law previously applied to Hindus by virtue of any text or rule. Custom or usage kept the concept of coparcenery property retained in section 6 of the Hindu Succession Act.

The law now specifically provides that any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made under the Act.

Customary law, as it applied to Hindus in Punjab, has eased to exist with respect to any matter for which provision has been made in the Hindu Marriage Act, the Hindu Adoption and Maintenance Act and Hindu Minority and Guardianship Act. Power to contest alienation on the basis of customary law has been taken away by the Punjab Customs (Power to Contest) Amendment Act, 1973.

Not only customs and usages become unreasonable with the passage of time, enacted law also suffers the same vice. Section 18 of the Adoption and Maintenance Act entitles the wife to claim maintenance from her husband if he is guilty of desertion, treats the wife with cruelty, or is suffering from a virulent decease or is indulging in adulterous behaviour but the wife ``shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to an other religion.`` It is derogatory to the fundamental rights of a citizen granted under Article 25 of the Constitution of India. Freedom of conscience and free profession, practice and propagation of religion, subject to public order, morality and health is the right of every citizen to freely choose and practice. Culture, Custom and Law are inter linked, inter-related, subject to change and development under changing social and economic conditions.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court, jogindersingh_toor@yahoo.com Mobile 91-98151-33530]

BACK