CUSTOMARY LAW IN INDIA

I. What is customary law in India

Custom, in simple terms, means an established pattern of behavior and a uniform
conduct observed by the people living in a society or a particular area for a long period of
time.
When such practice is accepted by law or given legal recognition, it becomes a
codified legislation known as customary law. The customary laws provide a wealth of
information about the customs and usages observed in a particular community or society.
It is not a single body of law but is an adaptive, flexible, evolving body of norms and
rules governing the behavior of communities over long periods of time. Customs are
usually characterized as ancient, certain, reasonable and invariable. Prudentially, there
emerge two distinct frameworks namely – law and custom.
The codification and legal recognition of these customs is important. The co-existence of
customary practices and formal law is not peaceful but subject to conflicts and
contradictions with adverse impact not only on the societal relations but also the working
of the legislature in the effective implementation of the laws.
This is because law in action may be quite different from law in books. Customs are not
clearly defined and are not universally applicable and in their actual operation adapt
themselves to the socio-political contours of society.
Customs occupy a very prominent place in modern India, and are recognized by the
Parliament and the legislatures as valuable in the administration of law and justice. The
Constitution of India treats customary law on the same lines as other branches of civil
law.
According to Article 13, the term ‘law’ includes ‘customs’ and ‘usages’ having the force
of law. But it cannot infringe any of the fundamental rights conferred by part III of the
Constitution.
Custom is an integral constituent in the Indian as well as the International legal
system. Unlike Statutory law, customary laws come into sight from the community, and
command social acceptance and observance or compliance. However no custom will be
legally recognised if it is opposed to the principles of justice, equity and good conscience.

II. Indian Marriage under customary law:

1. (Illegal) Child Marriage
Child marriage refers to the marriage of a child younger than 18 years old, in accordance
to Article 1 of the Convention on the Right of the Child. In simple terms, child marriage
is the marriage of a person aged before majority. As a derivative interpretation of several
international documents, it is a violation of human rights. While child marriage affects
both sexes, girls are disproportionately affected as they are the majority of the victims.
Child marriage and child betrothal are oftentimes practices that are related to customary
and religious beliefs, along with a lot of relevant economic considerations.
Child marriage in India is not a new phenomenon. The practice as it prevails now,
though, continues to thrive in economically disadvantaged communities, especially those
that are coloured by customary and cultural practices and perspectives that encourage the
early marriage of a girl child.
Law and policy targeting child marriage in India:
The Prohibition of Child Marriage Act was passed in 2006 following the high
number of child marriages and disappointment of the already existing Child Marriage
Restraint Act of 1929 to provide an adequate solution to this social menace. The core
provisions of the Prohibition of Child Marriage Act, 2006 are as follows:
 The legal age for marriage in India is eighteen for girls and twenty-one
for boys, on the lines of what was mentioned in the Child Marriage
Restraint Act of 1929.
 By Section 16, full-time “Child Marriage Prohibition Officers” are
appointed in every state and are supposed to police instances of child
marriage. These officers are vested with the authority to prevent child
marriages, make documented reports of violations, charge offenders that
can also include the child’s parents and even remove children from
dangerous and potentially dangerous situations.
 Child marriages are not considered illegal but merely voidable. The
grounds for the declaration as void are laid down in the act itself. This is
done at the option of the child that has been married off – allowing her to
declare her marriage void at any time up to two years after reaching
adulthood.
 The only exception where a child marriage can be declared as void even
before the child reaches the age of 18, is when the child has been abducted,
kidnapped, trafficked or been compelled to marry under force, deceit,
coercion or misrepresentation.
 The legislation also penalizes the arrangement, performance or
participation in child marriages. By Section 9, any man who is aged above
eighteen who contracts for a child Marriages in India The Red Elephant
Foundation December 2013 Page 9 child marriage is punishable by
imprisonment of up to two years, or may be charged with a fine of up to
one lakh rupees, or both.
 By Section 10, these penalties are extended to anyone who performs,
conducts, directs or abets a child marriage unless he can prove that he had
reason to believe that the marriage was no child marriage.
 If the child herself contracts for a child marriage, under Section 11, any
parent or guardian who actively supports the marriage or negligently fails
to prevent it is punishable by way of imprisonment and or a fine. The same
provision has a clause, namely section 11(2), which speaks of a rebuttable
 presumption that the child’s parent or guardian negligently failed to
prevent the marriage.
Indeed, Indian law has taken measures to prohibit this situation, but it is not really
thorough, so child marriage still exists and has not been resolved.
Considering that the law is by itself rather segmented in the approach to child
marriage and its various forms, and the fact that there have been many, many instances of
child marriage but only a few have been reported, overall, it would be fair to conclude
that the law hasn’t been as successful as is ideal. The few cases that have been reported
have been criminal prosecutions – most of which involve the adult spouse and or the
family of the minor involved. In many instances where such cases are brought to fore,
judges have ordered the minor or both spouses as the case may require, to seek
counseling while they deliberate on the custody rights based on the best interests of the
minor. As much as the legislation is centric to the interests of the minor, there are very
few instances where the minors themselves in their capacity as the victims of child
marriage, have successfully approached the court and filed for a declaration testifying to
the effect that their marriage is void under the Prohibition of Child Marriages Act. Per
se, under the law, there are no legal exceptions to the prohibition on child marriages, nor
for the rule imposing a minimum age for marriage.
2. Polygamy
 Polygamy means entering into more than one marriage while the first marriage is
still subsisting. Polygamy is illegal in India for Hindus and other religions except
for a Muslim male who is permitted to have multiple wives, maximum four in
number, as per the law. In India, the issue that mostly still exists is polygyny - a
type of polygamy in which a man has more than one wife.
 Under Muslim personal law, a male can marry four wives and keep them with him
at a time. Whereas, a female is not supposed to marry more than one person. When
a male marries four females, such marriage is valid and legal in Muslim personal
law. A female cannot have more than one spouse. This shows the legal status of
polygamy under Muslim marriage.
 A Muslim man can become polygamous under the following circumstances.
1. “if a man has a high sex libido, he can marry more women to avoid
committing sexual offenses”.
2. He should have resources such as land and money.
3. He should be truthful and responsible.
4. He should be acquainted with Indianndian law.
5. He should possess good leadership skills because it is quite difficult to
solve social disputes in polygamous marriages.
 Unless the community specifically has a law accustomed against polygamous
marriages, the law classically assumes that all customary marriages are potentially
polygamous. As far as customary law goes, there is no limit to the number of
wives, so a man can take as many wives as possible. A person who has contracted
 one polygamous marriage has continuous perpetual capacity to contract other
polygamous marriages
 However, a person that has contracted customary marriage does not have the
capacity to contract any kind of monogamous marriage. If the people has married
their wives in a customary arrangement, and they agree that they do not want this
marriage to be polygamous, they can sign a document and take it to the registrar so
that the registrar knows although this marriage is customary and not open to any
other wives that make it monogamous.
 Many Muslim women detest polygamy. First, a woman often develops a low self-
esteem when her husband marries another woman.
 Second, women always lack social support in polygamous marriages. This often
leads to emotional problems and rivalry in polygamous marriages. Indeed, women
in polygamous marriages often develop psychological problems such as
depression because their husbands do not spend enough time with them.
 Furthermore, children in polygamous families often become indiscipline due to
lack of proper parental guidance. Cases of physical and emotional abuses are
frequent in polygamous marriages than in monogamous ones. Men in polygamous
marriages like abusing their wives because they have many women.
 Many Muslim women criticize polygamy because it encourages patriarchy in the
family. Usually, men become authoritative in polygamous marriages. They do not
allow their women to participate in important decision-making processes in the
family. For example, some men marry many women without consulting their
wives.
 Moreover, many women in polygamous marriages do not have power to control
family resources such as land. Consequently, lack of proper decision-making often
leads to bickering, violence, and jealousy in polygamous marriages. In addition,
polygamy can lead to the spread of sexually transmitted diseases such as
HIV/AIDS.
 For customary marriages, today the marriage act requires that customary marriages
have to be registered. For some reason, people believe that when they are married
under customary law, they do not register their marriages. Now, the law requires
that even a customary marriage must be registered. The registrar will take a short
period of time to give them a certificate of marriage which indicates that they are
married under customary law and it also indicates under the customs of which
community they are married under

III. Comments:
1. Advantages of customary law:
The biggest advantage of a customary law is that it comes from the community
and is therefore simple and easy to understand. Moreover, it is friendlier to the locality or
community from which it has emerged. Hence, it receives better compliance from the
local people.
 Customary law is less complicated. It is speedier and less expensive than formal
courts of law.Any dispute that takes years to resolve in a formal court of law is resolved
in comparatively much less time by traditional institutions.

2. Disadvantages of customary law:

-The biggest problem that customary law faces is that it is region specific and so
there exist multiple laws that might overlap. There may be a customary law in one
community, which could be different from that of another community in the same or
neighboring locality. Although they have an inbuilt system of checks and balances to
preserve their rich natural surroundings, there may also exist laws that may not be very
practical or advisable.

- There is a general perception that women that are affected, impacted on or whose
lives are governed by customary law are less educated, poor and live in rural areas.
Whilst in the majority of cases, such women are often unable to claim their rights
when affected by customary law due to their situations, the reality is that most
women in India are affected by customary law in one way or another regardless of
class, location or level of education.

In Indian society, women are traditionally discriminated against and excluded from
political and family related decisions. Despite the large amount of work women must do
on a daily basis to support their families, their opinions are rarely acknowledged and their
rights are limited.
Indian society does indeed recognize many women’s rights, including the rights to
political involvement, family allowance and set up a business. Nevertheless, in rural
areas, poverty and a lack of information represent real barriers to women’s independence
and empowerment.