Re: [nukkad] Custom and law

Dr. MCG wrote: Law is not merely the Constitution or the statute. It
has many more
components, about 5-6 more. One of them is custom. A custom has full force
of law. However, what is a custom must satisfy the legal requirements laid
down in jurisprudential texts and leading judgments and generally accepted
by jurists.
-------------------------

A custom has full force of law only if it does not contravene any
existing law or the law itself  legitimizes the customs. Hindu
marriage law is a classic example. It specifically approves proof of
performance of customs as proof of marriage; it even makes exceptions
to its own provisions to allow customs (e.g. marriage between close
relatives) to prevail. In the absence of such provisions in the HM
Act, customs may not survive judicial test as Judiciary cannot allow
customs to override Law. If and when registration of marriages is made
compulsory (as directed by SC last year), custom will cease to be
proof of marriage in Courts (only proof of registration will be
acceptable for marriages performed after that) but customs will
continue to be proof of marriage for the purpose of registration,
unless the law in this regard is also changed.

Thus custom is a component of Law only to the extent the Law and
Constitution specifically allow or to fill in gaps in the law /
evidence adduced.

Venu

On 3/22/08, Dr.M.C. Gupta  wrote:
>
> [This message contained attachments that have been removed.]
>
>
> Law is not merely the Constitution or the statute. It has many more
> components, about 5-6 more. One of them is custom. A custom has full force
> of law. However, what is a custom must satisfy the legal requirements laid
> down in jurisprudential texts and leading judgments and generally accepted
> by jurists.
>
> EXAMPLES-- Marrying husband's younger brother on the demise of the husband;
> Polyandry. Both these are common in certain societies in India.[Punjab;
> HP]. Also, marrying a cousin. [In certain segments of South India].
>
> Even sapt-padi is not sacrosanct. If it can be proven to judicial
> satisfaction that the custom of any other form marriage other than the
> Sapt-padi is prevalent in the society, the marriage would be held as legal.
>
>
> Since the fact of marriage is vitally connected to the welfare of the two
> individuals concerned and their offspring and the property rights of all,
> courts are very often called to decide upon the legality of marriage. The
> case of Munna Bhai is topical and current. The latest: his so called wife is
> not legally divorced from previous marriage, hence the actor is guilty of
> the criminal act of adultery and bigamy. The court was hearing a petition by
> the husband of the girl, who is in jail. [What a wonderful threesome! The
> actor is now a jailbird. He marries the wife of another in his absence. The
> two go to Goa for the purpose and marry under a Goa Act. The word leaks. The
> marriage is questioned. It transpires that the marriage was based upon false
> statements made by the couple. The marriage is annulled by the Registrar of
> marriages Goa. There is more trouble. Manyata's husband files a criminal
> complaint from jail, accusing the Bhai of having pinched his wife in his
> absence, accusing him of adultery and bigamy].  BTW, it was not for nothing
> that the bhai's sisters did not attend his marriage with Manyata. [Women are
> smart. A man cannot make a fool of his mother, sister or wife. And, he can
> fool his daughter only when she is still a child. God has gifted women with
> that intution and sixth sense or gut feeling just in order to equip them
> against exploitation by men.
>
> http://www.writing.com/main/view_item/item_id/1403200
>
>  http://www.writing.com/main/view_item/item_id/1404101
>
>
> M C Gupta
> --
> Prof. M C Gupta
> MD (Medicine), MPH,  LL.M.,
>
> Advocate & Health and Medico-legal Consultant
>
> mcgupta44@gmail.com
> www.writing.com/authors/mcgupta44
> http://mcgupta44.blogspot.com/
>
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