Re: [nukkad] Custom and law

["Dr.M.C. Gupta" <>]

[This message contained attachments that have been removed.]


Ref:
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.

***

This is inbuilt in my statement: 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.

MCG

====================================================

On 3/24/08, vkvenugopal@gmail.com  wrote:
>
> 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/
> >
> >
> ----------------------------------------------------------------------------
> > A morning-glory at my window satisfies me more than the metaphysics of
> > books. -Walt Whitman,  poet (1819-1892)
> >
> ----------------------------------------------------------------------------
> >
> >
> >
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> >
>



-- 
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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