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An instance where scope of law is limited and customs come into picture.... Vishal Banga

Customary Laws

In India, customs has been recognized as transcendental law, i.e. customs over-rides the personal law. Under Hindu Law it has been the established rule that "clear proof of customs will overweigh the written text of law".

In India, customs has been four types: customs of caste (this expression is relevant in respect of Hindus) or tribes (this expression is relevant to Punjab), local customs, family customs and customs of merchants and traders.

Under Punjab Customary Law the three-fold division of custom into tribal custom, local custom and family custom exists only in a very broad sense, otherwise, strictly speaking, customs in Punjab is neither tribal, nor local nor familial. In a sense it is both local and tribal, but it may vary from tribe to tribe and from Tehsil to Tehsil.

In Punjab the custom is not general either - general in the sense that any particular custom being applicable to all Punjabis. Customs in Punjab is predominantly tribal. But this general statement of law has to be accepted with a pinch of salt. The question whether a custom is local or tribal becomes important when we consider the question of proof of custom. The difficulties arise

as it cannot be said categorically that members of a tribal wherever they may be are necessarily governed by the same custom or that the people living in a locality are governed by the same local custom. The matter of the fact is that the custom in the Punjab cuts across each other in a sense it is both local and tribal and in sense it is neither local nor tribal.

It is interesting to note that the term "customary laws" has come into vogue and whenever we refer to the Punjab customs we call the "Punjab Customary Law". The term "Punjab Customary law", is used since it refers to body of rules which governs Punjab tribes. and it is as much binding and enforceable as rule of law.

Marriage

With the coming into force of the Shari' at Act 1937 a very little of customary law of marriage has been left which applied to Muslim tribes. With the coming into force of the Hindu Marriage Act 1955 only a few areas of customary laws of marriage have been operative.

Concept of Marriage

Despite the spread of Hinduism, the tribal Punjab retained its customary law of marriage almost intact, with the result that the customary law remained a secular law, and the notions of marriage as a sacramental union and holy bond did not invade customary law,. Some Hindu tribes converted to Islam, but in their secular matters relating to marriage, are governed by customs. Marriage under customary law has been a very simple affair. It is based in the mutual consent of the parties to marriage or their guardians when parties are minors. Thus, marriage under Punjab customary law has been essentially a contractual union.

It has been the considered view of the Punjab Chief Court that among certain tribes "even if no ceremonies are performed, and the connection has been long established and the woman treated as a wife by the man and recognized by the bradari then it was treated as a valid marriage. However, this does not mean that all customary marriages are without any rituals and ceremonies. Some particularly the high caste Hindus, perform most of the Hindu rituals and ceremonies. What is emphasized here is that under the Punjab customary law a marriage by mutual consent followed by cohabitation even without the performance of any rituals and ceremonies is also valid.

Forms of Marriage

Strictly speaking, there are no forms of marriage under customary law as we talk of them under Hindu law. Different tribes follow different formalities and if we classify them in accordance to formalities their number will run into several scores.

However, there are two forms of marriage:

1. Karewa Marriage
   In the letter and spirit of law, the karewa marriage is essentially a marriage by mutual consent without the performance of any ceremonies whatsoever. When a man and woman agree to live as husband and wife and cohabit as such, a valid marriage results between the two. Mostly such marriages are performed in low caste Hindus. But sometimes high caste Hindus also perform karewa marriage. In such marriages women is usually a widow, divorcee or abandoned woman. Among Jat tribes marriage with a widow (usually with a brother's widow) in this form is very common. Here under the woman bears him children, such children are accepted as legitimate children in all respects, and the brothers widow gets the status of wife.
   
   In some cases it has been stated that the pure Brahamans and Rajputs do not enter into such marriage.
   
   It is submitted that a kawera marriage can take place with any woman, relative or stranger, though usually the woman is a widow, divorcee or a abandoned wife. What distinguish the kawera marriage from others is that no ceremonies (even a semblance of ceremony) whatsoever are required to be performed and mere cohabitation gives rise to marriage conferring on the parties the status of wife and husband and legitimacy on the children of such marriage. In short, in the eyes of law it is perfectly valid marriage.
    
2. Chadar-Andazi Marriage
   Remarriage of widows has all along existed commonly, and the chadar-andazi, in which the the ceremonial has been reduced to the very minimum, is one of the recognized form of the marriage. In the Rattigan's Digest the statement of law is thus made:
   
   "A Kawera marriage among the jats usually takes place in the chadar- andazi form which means throwing the chadar over the couple about to be married ".the marriage under this forms takes place in several modes. The two common modes are:
   1. The four corners of chadar are tied and some saintly person or relatives spread over married. bride and bridegroom at place where they are seated to be
   2. In another mode the bridegroom places the chadar over the bride who comes under it. The placing the chadar over the woman and its acceptance by her or the coming of the bride and bridegroom under the chadar, is a mode of expression of intention by parties and wife. to live together as husband it is a type of contractual union:
      Placing the chadar on woman by man making a proposal acceptance of the chadar by woman acceptance
      
      But in chadar andazi as well in kawera marriage it is the cohabitation which results into the marriage. Once this form of marriage is established it confers the status of husband and wife on the parties, and the legitimacy on the children of the marriage.
      
      It can be performed with a total stranger. In Dalip Kaur v. Fatti it was performed by a Sikh jat with a Muslim woman convert to Sikhism.

Capacity to Marry

The capacity to Hindus to marry is now governed by the Hindu Marriage Act 1955. However, clauses (iv) and (v) of section 5, Hindu Marriage Act lay down that in the matter of sapinda relationship and degrees of prohibited relationship parties may still be governed by custom provided they are governed before the coming into force of the Hindu Marriage Act.

Inter Caste and Sagotra Marriages:

Under customary law inter caste marriages were not permitted as a rule. Marriages within same got were considered invalid. The general rule was that the person cannot marry a woman belonged to his got. Some tribes held that one cannot marry a women who belonged to one's mother's, father's mother's, and mother's mother's got. Among some tribes and castes there has been a well recognized custom under which sagotra marriages were valid. After coming of Hindu marriage act 1955, the prohibitions of inter caste, inter sub caste, and inter tribe have been done away, now " ANY TWO HINDUS CAN MARRY".

However, Hindu cannot marry a non- Hindu.Among the Muslims tribes inter- sect and inter- school marriages have been valid and are still valid. A Sunni male can validly contract a marriage with a kitabia but not with an idol- worshipper or fire- worshipper. This type of marriage is not void but merely irregular. The shi'as are more rigid, and neither a shi'a male nor a shi'a female can marry a non- Muslim.

Age:
Under Hindu Law, Muslim Law, and under Customary Law, marriage of minors have been valid. Hindu law the Hindu marriage act 1955 lays down that a male below age of 18 and a female below age of 15 cannot marry, and if the girl is below the age of 18 the consent of guardian is necessary. Now the matter is subject to the provisions laid under Child Marriage Restraint Act 1978 which says that male below the age of 21 and a female below the age of 18 cannot marry.

Muslim law - A male or a female below the age of puberty can marry only with the consent of the guardian. Customary law rule has been that for the marriage of minor, the consent of guardian is necessary. If the bride or bridegroom is major, his or her consent, as the case may be, is necessary.

Bigamy:
Under customary law, a Hindu male has permitted to take more than one wife and a Muslim male was permitted to have four wives at a time. After coming into force of the Hindu Marriage Act 1955, no Hindu can take a second spouse, and bigamy (both polyandry and polygamy) have been made penal offences, and a party guilty of bigamy can be prosecutes under Sections 494 and 495, Indian Penal Code. Muslim can still have four wives.

Rattigan's Digest says that "until the former marriage is validly set aside, a woman cannot marry a second time"."

Marriage with a Widow:
In Rattigan's Digest it is stated, "The woman amongst the three superior classes of Hindus must not be dharel of the widow of another man"."

It has been an established preposition that among the lower castes, widow marriages have been very common and valid. Although there is no direct prohibition of marriage between the father-in-law and widowed daughter- in law among the lower castes, but it is considered to be repugnant to good morals and therefore, is not valid. But in Jaginder Singh v.Kartara¹º, such marriage was held liable.

Mental capacity:

• There is not much discussion whether mental capacity is necessary. But in a series of case it has been laid down that if parties are adylt their consent is necessary. In this respect, now the Hindus are governed by the Hindu Marriage Act 1955 section 5 (ii) lays down the terms.

Prohibited relationship:
The modern Hindu law puts the prohibition for marriage on the basis of relation inder two categories:

1. Sapinda relationship,
2. Degrees of prohibited relationship.

The sapinda relationship with reference to a person "extends as far as the fifth (inclusive) in line ascent through the father, and the third generation (inclusive) in the line of ascent, the line being traced upward in each case from the person concerned who is counted as the first generation".
Two person are said to be within the "degrees of prohibited relationship":

1. If one was wife or husband of lineal ascendant or descendant of the other.
2. If one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other, or
3. If the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of the two brothers or of the two sisters.

Under Punjab customs, among several tribes, marriage between two person which are either sapindas to each other or are within the degrees of prohibited relationship is recognized. For instance, marriage with the mother's sister's daughter or father's sister's daughter or sister's daughter is permitted in some tribes. Under Muslim law, there is also prohibition with certain relations which fall under five categories:

1. Consanguinity
2. (Affinity
3. Fosterage
4. Unlawful conjugation
5. Woman undergoing idda

Ceremonies of marriage: In respect of requirement of formalities of the marriage one often finds the following statement, 'As a general rule, no particular form of ceremony is necessary, even among higher castes, to constitute a marriage. In fact, it is not the ceremonies but the consent of the parties which constitute marriage."

1. Marriage under customary law may be solemnized in three modes:
2. Firstly, the religious or sacramental ceremonies are required to be performed in the higher classes of Hindus when they perform a regular or normal marriage.
3. Secondly, some formal and secular ceremonies are to be performed tribes for the performance of normal and regular marriage (included the Muslim tribes).
4. Thirdly, no ceremonies whatsoever are required to be performed in some tribes; mere intention to live together as husband and wife.

Divorce: At a time, when divorce was not recognized under Hindu Law, Hindus cannot obtain divorce only if a custom governing them allowed divorce. That marriage is a contractual union finds its full manifestation under customary law in the very simple modes of divorce, including divorce by mutual consent. Other matrimonial reliefs, such as nullity of marriage, judicial separation and restitution of conjugal rights, were unknown to customary law. As to the customary divorce the law has been stated by Rattigan in paras. 72 and 73.

• Para 72 runs:
• Amongst Muhammaden of all classes a man may divorce a wife without assigning any reason; but this power, in the absence of special custom, is not allowed to Hindus, nor to females of any class.

• Para 73 runs:
• Until the former marriage is validly set aside a woman cannot marry a second husband in the lifetime of her first husband.

Under customary law no formal forum of divorce is provided. It may be obtained through a panchayat or from family tribunal, or by private act of parties such as by agreement, oral or written, or by bill of divorcement such as tyag patra or farkat nama. No specific grounds of divorce are recognized. Divorce may be obtained by mutual consent. It appears, most jat tribes recognize easy mode of divorce. In some divorce is in writing, in some it is oral. Written divorce: Some tribes, such as Ghuman jats, insist that the divorce must be in writing. In such cases it is not necessary to state the grounds of divorce. Mostly, in such a case divorce is unilateral; whenever the husband wants to divorce his wife, he writes a tyag patra (in case of Hindu tribes) or farkat nama (in case of Muslim tribe). However, there is no rigidity. It must be clearly understood that customary law does not prescribe ant form; written deed must clearly express the intention to divorce. When divorce is recognized it is valid, and the woman is free to remarry. Renunciation, abandonment or repudiation: Among several tribes and communities, particularly the Jat tribes, a husband has the power to repudiate the marriage. In LACHHU v. DAL SINGH where parties were Ghuman jats of Gurdaspur tehsil, Roe, CJ observed: " It is in no way repugnant to the spirit of this law that a man who takes a wife should have the power of repudiating her and that, when so repudiated, she should be free to marry another man". In some cases view has been expressed that mere abandonment of the wife by the husband does not lead to automatic divorce, and if the abandonment wife lives with another man as his wife, the second marriage will not be recognized. Among some castes, just as zargars of Gurdaspur District abandonment or desertion of the wife by the husband does not lead to divorce. Expulsion from castes: Expulsion of the husband from the caste does not lead to divorce, and the wife cannot refuse to live with the husband. Immorality, unchastity, adultery or conversion: Among some tribes the husband can divorce his wife on the ground of unchastity, immorality or adultery. In Bhan Kaur v. Isher Singh -the court recognized that among Malerkotla Jats the husband has the power to divorce a wife who is immoral or who committed adultery or who converted to another religion. Apostasy: Before the coming into force of the Dissolution of Muslim Marriage Act 1939, the position was that apostasy (conversion to another religion) of either husband or wife operated as an instant dissolution of marriage. 14 This was also the position among the Muslim tribes of Punjab. Now, under the Hindu Marriage Act 1955, the conversion of wife or husband entitles the other party to sue for divorce, 15 Divorce by mutual consent: The customary law recognizes divorce by mutual consent. Sometimes such divorces are in writing and sometimes these are oral. Sometimes the consent of the husband is obtained by making payment to the husband of the actual expenses of the marriage. Such a divorce is valid. But the marriage with woman whose husband is alive even with the knowledge of the latter is not valid. Restitution of conjugal rights: The matrimonial relief of restitution of conjugal rights was made available to all communities at an early period of British rule in India. Apart from the statuses, the remedy of restitution of conjugal rights is available under the general law by a suit for restitution of conjugal rights in the lowest civil courts. There is no period of limitation within which a suite of restitution of conjugal rights may be filled. In a view of this, Para 79 of Rattigan's Digest which lays down that a suite for restitution of conjugal rights must be filled within two years from the time when restitution is demanded and refused, has become obsolete and states the law. The remedy of restitution of conjugal rights is nor recognized under customary law. Since they are no customs in any tribes which recognized anything like this:

• Sometimes panchayat or bradari persuades unwilling wife to go to husband.
• Made available to all communities at an early period of British rule in India.
• Now available under all statutes of Hindu marriage act 1955.
• Muslim can obtain this relief by filling a suite in the civil court of lowest jurisdiction.
• Among the Hindu jats and Muslim Gujagrs a minor husband is not in tilted to restitution of conjugal rights.

Case: Utti v. Heera Singh:
The court said that a husband who has abandoned his wife is not in tilted to restitution of conjugal rights. The court observed that since the husband, by a written deed, had stated that he gave her up, have no further claim upon her and that another man might marry her, he could not have his wife back.

Option Of Puberty
In Rattigan's digest, Para 71 it is stated: "a marriage once legally performed between two adults cannot be repudiated except by the exercise of divorce where such exists".Under customary law consummation of marriage is nor necessary for validating a marriage. When a Muslim minor is given in marriage by a guardian other than a father of grandfather, it has the right to repudiate the marriage on attaining majority assigning any reason. This is known as option of puberty for the exercise of option of puberty, the following two conditions must be fulfilled:

• (i) The option must be exercised on attaining on puberty, and
• (ii) The marriage should not have been consummated.

Now, Child Marriage (Amendment) Act 1978 will now act on the law of age of marriage under various personal laws.