Classification of Law

1. Introduction
There are many ways to classify laws, but to narrow things down the law is
divided into two broad categoriescriminal law and civil law. To make it easy,
civil law is all law other than criminal law, such as property law, which governs
transfer and ownership of property, and contract law, which is the law of personal
agreements; doesnt that make things so much clearer? When a person has a
grievance and it cant be settled any other way, than an action has to be taken were
the courts will settle the differences. This type of law is called a tort law and its a
civil action in which an individual asks to be compensated for personal harm done
to him or her. The harm may be either physical or mental and includes such
wrongful acts as trespassing, assault and battery, invasion of privacy, libel (false
and injurious writings against you), and last but not least, slander (false or injurious
writings).

Torts happen when someone is injured by the actions of another. Remember O.J.
Simpson, who was found not guilty during his criminal trial, but was found
guilty during his civil trial? This discrepancy happens because the standard of
evidence for a finding is less in civil cases. Criminal trials are based on the
evidence of beyond a reasonable doubt, while for a civil case the evidence has
only to prove the preponderance of the evidence.

A violation of civil law may also happen when a behavior indirectly causes
injury that starts a chain of events that end in d--th. Some torts are similar to
criminal acts and that is why a person can be held on both counts. For example, if
one man hits another in the mouth, it is possible for the assailant to be charged by
the state with assault and battery, be imprisoned, plus be sued by the victim in a
tort action of assault in which the attacker will have to pay the victim for the
damages he caused. An important similarity between criminal law and civil law is
they have a common purpose, and this is to control peoples behavior by setting
limits on what acts are permissible in this country.

The main purpose of criminal law is to give the state the power to protect the
public from harm by punishing individuals whose actions threaten the social order
of things. In tort law, the harm or injury is considered a private wrong, and the
main concern is to compensate the victim for the harm that was inflicted on them.
For criminal actions, the state initiates the legal proceedings by bringing charges
against the criminal, then prosecuting him or her.

Once it is determined that a criminal law was broken, the state will then proceed to
impose a sentence against the defendant such as imprisonment, probation, or a fine,
payable to the state. In civil actions, the injured person must file an action in order
to initiate proceedings, if the offender is found guilty, then he or she must pay
restitution to the person that was harmed. Of all cases, criminal or civil laws that
are brought up on charges, only 10% of these charges actually go to trial and are
heard in front of a judge or jury. Most cases are settled out of court, by both parties
coming to an agreement that they both can live with.

2. Definition of Tort

The term tort is the French equivalent of the English word wrong and of the
Roman law term delict. The word tort is derived from the Latin word tortum
which means twisted or crooked or wrong and is in contrast to the word rectum
which means straight. Everyone is expected to behave in a straightforward manner
and when one deviates from this straight path into crooked ways he has committed
a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a
technical term of English law, tort has acquired a special meaning as a species of
civil injury or wrong. It was introduced into the English law by the Norman jurists.

Tort now means a breach of some duty independent of contract giving rise to a
civil cause of action and for which compensation is recoverable. In spite of various
attempts an entirely satisfactory definition of tort still awaits its master. In general
terms, a tort may be defined as a civil wrong independent of contract for which the
appropriate remedy is an action for unliquidated damages. Some other definitions
for tort are given below:

Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily
fixed by law; this duty is towards persons generally and its breach is redressible by
an action for unliquidated damages.
Salmond and Hueston- A tort is a civil wrong for which the remedy is a common
action for unliquidated damages, and which is not exclusively the breach of a
contract or the breach of a trust or other mere equitable obligation.

3. Nature of Torts

A. Tort and crime

Historically tort had its roots in criminal procedure. Even today there is a punitive
element in some aspects of the rules on damages. However tort is a species if civil
injury or wrong. The distinction between civil and criminal wrongs depends on the
nature of the remedy provided by law. A civil wrong is one which gives rise to civil
proceedings. A civil proceeding concerns with the enforcement of some right
claimed by the plaintiff as against the defendant whereas criminal proceedings
have for their object the punishment of the defendant for some act of which he is
accused. Sometimes the same wrong is capable of being made the subject of
proceedings of both kinds. For example assault, libel, theft, malicious injury to
property etc. in such cases the wrong doer may be punished criminally and also
compelled in a civil action to make compensation or restitution.

Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where
the appropriate remedy for it is an action for unliquidated damages. Thus for
example, public nuisance is not a tort merely because the civil remedy of
injunction may be available at the suit of the attorney general, but only in those
exceptional cases in which a private person may recover damages for loss
sustained by him in consequence thereof. However it has to be born in mind that a
person is liable in tort irrespective of whether or not an action for damages has
been given against him. The party is liable from the moment he commits the tort.
Although an action fro damages is an essential mark of tort and its characteristic
remedy, there may be and often other remedies also.
The Law of Torts In India

Under the Hindu law and the Muslim law tort had a much narrower conception
than the tort of the English law. The punishment of crimes in these systems
occupied a more prominent place than compensation for wrongs. The law of torts
in India is mainly the English law of torts which itself is based on the principles of
the common law of England. This was made suitable to the Indian conditions
appeasing to the principles of justice, equity and good conscience and as amended
by the Acts of the legislature. Its origin is linked with the establishment of British
courts in India.

The expression justice, equity and good conscience was interpreted by the Privy
Council to mean the rules of English Law if found applicable to Indian society and
circumstances. The Indian courts before applying any rule of English law can see
whether it is suited to the Indian society and circumstances. The application of the
English law in India has therefore been a selective application. On this the Privy
Council has observed that the ability of the common law to adapt itself to the
differing circumstances of the countries where it has taken roots is not a weakness
but one of its strengths. Further, in applying the English law on a particular point,
the Indian courts are not restricted to common law. If the new rules of English
statute law replacing or modifying the common law are more in consonance with
justice, equity and good conscience, it is open o the courts in India to reject the
outmoded rules of common law and to apply the new rules. For example, the
principles of English statute, the Law Reform (Contributory Negligence) Act,
1945, have been applied in India although there is still no corresponding Act
enacted by Parliament in India.

The development in Indian law need not be on the same lines as in England. In
M.C. Mehta v. Union of India , Justice Bhagwati said, we have to evolve new
principles and lay down new norms which will adequately deal with new problems
which arise in a highly industrialized economy. We cannot allow our judicial
thinking to be constructed by reference to the law as it prevails in England or for
the matter of that in any foreign country. We are certainly prepared to receive light
from whatever source it comes but we have to build our own jurisprudence.

It has also been held that section 9 of The Code of Civil Procedure, which enables
the civil court to try all suits of a civil nature, impliedly confers jurisdiction to
apply the Law of Torts as principles of justice, equity and good conscience. Thus
the court can draw upon its inherent powers under section 9 for developing this
field of liability.

Our legal system is made up of both a criminal justice system and a civil justice
system. These two systems exist to deal with two different types of laws (criminal
law and civil law) that have very different consequences if they are broken. As
civil and criminal law have different purposes, different systems for dealing with
them have developed. There are four different classifications of law that are found
around the world. In this brief article I will explain the differences that make up the
four classifications of law.
A. CRIMINAL LAW
1. Creates laws for the protection of the society as a whole and to
maintain law and order
2. Provides punishment for those who break the laws
3. Sets out types of behaviour that are forbidden within a society
4. Criminal cases must be proven beyond reasonable doubt
5. Criminal cases are usually brought on behalf of the State
6. At the end of a case, if the defendant is found guilty, he will be
punished by the State

B. CIVIL LAW

1. Settles disputes between individuals/companies/corporations

2. Civil cases are brought to uphold the rights of individuals and to
provide redress
3. A civil case is brought by an individual/company/corporation
4. Civil cases only have to be proven on the balance of probabilities
5. At the end of a case, the party at fault has to pay compensation or
comply with another suitable remedy, such as an injunction
Sometimes law is also classified into private law and public law.

C. PRIVATE LAW
1. Private law concerns the smooth running of a society and covers areas
in everyday life such as work, business dealings, employment, and
education.
2. Examples: law of tort, contract law, law of succession, employment
law, property law, family law, labour law, commercial law, etc.

D. PUBLIC LAW
1. Public law involves the State or government.
2. There are 3 main types of law that fall into public law category:
constitutional law, administrative law and criminal law.
3. Constitutional law - controls how the government operates; resolves
any disputes over constitutional matters, for example, who is entitled
to vote.
4. Administrative law - controls how Ministers of State and public
bodies should operate and make decisions.
5. Criminal law - Criminal law is part of public law because a crime is
regarded as an action against society and the state as a whole.
 E. INTERNATIONAL LAW -

4. Sources of international law:

Article 38.1 of the Statute of the International Court of Justice: Treaties
international customs
general principles

4.1. Public International Law

1. Public international law concerns the structure, relationship and
conduct of sovereign states, analogous entities, and intergovernmental
organizations.
2. The sources for public international law development are custom,
practice and treaties between sovereign nations, such as the Geneva
Conventions.
3. Governs the relationship between provinces and international entities.
4. Includes these legal fields: treaty law, law of sea, international
criminal law, international environmental law, the laws of war or
international humanitarian law and international human rights law.
5. Public international law has a special status as law because there is no
international police force, and courts (e.g. the International Court of
 Justice as the primary UN judicial organ) lack the capacity to penalise
disobedience.
4.2. Private International Law
1. Also known as "conflict of laws".
2. Concerns which jurisdiction a legal dispute between private parties
should be heard in and which jurisdiction's law should be applied.

4.3International Court of Justice (ICJ)

1. The primary judicial organ of the United Nations.
2. It is based in the Peace Palace in The Hague, the Netherlands.
3. Its main functions are to settle legal disputes submitted to it by states
and to provide advisory opinions on legal questions submitted to it by
duly authorized international organs, agencies, and the UN General
Assembly.

4.4 International Criminal Court (ICC)

1. A permanent tribunal to prosecute individuals for genocide, crimes
against humanity, war crimes, and the crime of aggression.
2. The Court's official seat is in The Hague, Netherlands, but its
proceedings may take place anywhere.
3. The Court can generally exercise jurisdiction only in three cases, viz.
if the accused is a national of a state party, if the alleged crime took
place on the territory of a state party or if a situation is referred to the
Court by the United Nations Security Council, and only when national
courts are unwilling or unable to investigate or prosecute such crimes.
[ Next ]
Law can be categorised in number of ways although the
various categories are not mutually exclusive

Common Law Civil Law Systems

Common Law Common Law and Civil Law; distinct

And Civil Law legal systems.
The English legal system is a
Common Law one as opposed to
Continental systems that are based on
Civil Law.
Because the Roman codes were
almost entirely limited to the private
area, public law is usually not
codified.

Courts In Civil In civil-law countries, separate

Law administrative courts adjudicate
Jurisdictions claims and disputes between the
various branches of government and
citizens, and many lawyers specialise
in public law.
In France, Germany, and Italy, still
other courts handle constitutional
issues.

The English Legal System

Civil Law Criminal Law

Comparison The English legal system is

characterised by two major categories
of law, those of CIVIL (not the same
as the Civil Law referred to above)
and CRIMINAL law. Each has its
own specific aims and outcomes.
The first major comparison is in the
DESCRIPTION of civil and criminal
 law.

Civil For example civil actions known as

TORT and also CONTRACT.
Broadly speaking one individual
against another (Smith v Jones).

Crime Essentially an anti social act against

the state.
(R v Jones) R= Regina (Queen) Rex
(King). The state against Jones.
As a broad principle, Civil Law seeks
to compensate; criminal to punish.
Both attempt to regulate behaviour.

Civil Law Professor Winfield's definition.

" A breach of duty fixed by law, towards
persons generally. Its breach redressable by
an action for unliquidated damages".
"Unliquidated" Not a pre-estimated any
amount.

Civil Law Duties Civil law demands that we do not do

certain things. E.G. Trespass or create
a Nuisance or Defame someone's
character.
The result is DAMAGES. Note the
recent trend for the courts to
compensate for intangible losses, e.g.
"disappointment" if a holiday were to
fail Jarvis v Swantours.

Interaction v- Civil Law and Criminal Law

Enforcement distinguish between law whose
purpose it is to facilitate the
interaction of individuals and law that
is aimed at enforcing particular
standards of behaviour.
Civil Law Sometimes clear-cut. Youve been caught on
Situations someones land to you must have trespassed.
There will be fewer obstacles in the way of
obtaining a remedy. (In crime the mental
element vital to guilt can be difficult to
prove).

This is not to say Civil Law is simpler than

Criminal Law both has their complexities.

Common Law Equity

Common Law Common Law and Equity distinguish

and Equity the two historical sources and systems
of English Law.
Common Law emerged in the process
of establishing a single legal system
throughout the country.
Equity was developed later to soften
the formal rigour of the Common
Law.
The two systems are now united but
in the final analysis Equity should
prevail.

Sources Common Law and Statute relate to

the source of law.
Common Law is judge made:
Statute Law is produced by
Parliament.

Private Law and Public Law relate to

whom the law is addressed.
Private Law relates to the individual
citizen whereas
Public Law relates to institutions of
government.

Private Law Public Law

Private Law

Relationships Private law involves the various

relationships that people have with one
another and the rules that determine their
legal rights and duties among themselves.
The area is concerned with rules and
principles pertaining to private ownership
and use of property, contracts between
individuals, family relationships, and
redress by way of compensation for harm
inflicted on one person by another.

Private Historically, government involvement was

arrangements usually minimal.

Private law has also operated to provide

general guidelines and security in private
arrangements and interactions in ways that
are complementary to morality and custom
but that are not necessarily enforceable in a
court of law, such as non-contractual
promises and agreements within an
association of private individuals.

Public Law

Includes Is a term used to describe law concerned

with the state law enforcement.

It includes criminal law, local government

law and town panning Law. The two latter
subjects are specialised aspects of
administrative .law.
Contrast public law with private law, e.g.
contract.
Government Public law concerns the relationships within
Individuals government and those between governments
and individuals.

Taxation Laws concerning taxation and the regulation

of business are in the public area, as is
criminal law.

Criminal Law Criminal law not only promotes security and

order but also reinforces moral norms.
Debate has been continuous regarding the
legitimacy of government intervention in
areas where moral attitudes are in
significant conflict, such as in matters of
sexual practices, pornography, birth control,
and euthanasia.

No constitution Because the Uk has no written constitution,

basic principles pertaining to government
powers and limits and to fundamental
individual rights are found in acts of
Parliament, judicial opinions, and tradition.

Control of Public law dominates in government-

resources controlled societies; democratic societies
increasingly have a mix of public and
private law. The private sphere includes
individuals and a vast array of groups,
associations, organisations, and special legal
entities such as corporations.

They compete with one another and with

government for control of resources, wealth,
power, and the communication of ideas and
values. Special fields of law, such as
 employment law, facilitate and control this
competition.

Much of such law is in the commercial and

corporate areas. The formerly purely private
law of property and contracts, for example,
is now overlaid with legislation, regulations,
and judicial decisions reflecting the
competition.

Administrative Law
Is a comparatively recent occurrence.

Local Numerous local and government

Government and administrative agencies now make rules that
Administrative reach into all manner of activities, including
Agencies Licensing,
Regulation of trades and professions,
Protection of health,
Promotion of welfare.
Compulsory purchase,
Planning controls,
Regulatory controls and
determinations like social security
payment
Their powers emanate from legislation, and
their rules are reviewable by the courts.

Judicial Review This deals with the organisation, powers and

duties of public administrative authorities.

In the modern state the executive has wide

powers of. When the authorities act outside
the law, administrative law (hopefully) has
the remedies.
France and Belgium have a special structure
(Droit Administrative). We do not.
International Law

Background The legal process that concerns relations

among nations is called international law.
Belief and experience in some form of
international law dates from at least the days
of the Roman Empire.

Such law differs greatly from national legal

systems. No court has the authority or
power to give judgments backed by coercive
sanctions.

Based on Even in its most modern developments,

Custom international law is almost wholly based on
Treaties and custom.
Conventions The precedents on which it rests are the acts
of independent governments in their
relations with one another, including treaties
and conventions.

Behind many of its rules is only a moral

sanction: the public opinion of the civilised
world.

When treaties or conventions are involved,

however, machinery to enforce them exists-
either an arbitration or conciliation
procedure or the submission of the dispute
to a regional or international court.

Definitions A discernible body of rules and principles is

observed or at least acknowledged in
international relations.
 These rules concern such matters as
territorial titles and boundaries, use of the
high seas, limits on war, telecommunication,
diplomatic and consular exchange, and use
of air space.

The major sources of international law on

these matters are multilateral treaties,
international custom, and such general
principles as are recognised by civilised
nations.

United Nations The United Nations is one of the primary

mechanisms that articulate and create
international law.

The General Assembly and other agencies

of the UN bring a combination of
diplomacy, negotiation, and propaganda to
bear on World affairs in ways that produce
effective international treaties and affect
world opinion.

Certain courts also have indirect impact,

including the International Court of Justice.
Domestic courts in various nations at times
also engage in the articulation of
international law.

5.SOURCES OF LAW

The Merriam Webster dictionary defines Customs as "Long established practices

considered as unwritten law." A country like India, which can still trace the origin
of some of its laws to these long established customs, has come a long way from
the days when disputes were resolved on the basis of the local customs and
traditions prevalent in the society. The reason for this change can be credited to the
society itself. Customs are the products of the general and oft repeated practices in
the society and these practices undergo the same gradual change as the society over
the passage of time. Hence, customs need to evolve, or the definition of custom, to
accommodate these changes in society.
The Hindu Marriage Act, 1955 and various other legislations have recognised
customary practices as valid for solemnizing a marriage and for other purposes.
However, judicial interpretation of the word custom has had a negative impact as
the statutes could not contemplate the problems that might arise with including
customary ceremonies.
This essay briefly discusses the role of custom as a source of law in legal systems
around the world. The essay in order to explain the role of custom as a source of
law, with relevance to family law, revolves around custom as used in interpreting
the Hindu Marriage Act, 1955. It highlights the negative interpretation of the term
custom by the courts. The cases discussed show the judicial precedents set by the
Supreme Courts that are indicative of the patriarchal elements of these customs.
However, recent trends do suggest an increase in the general awareness to women
and child rights, and the courts have acknowledged the importance of these rights
by delivering what could be called as positive judgements towards their rights.
It concludes with a short review of the main aspects of the essay and emphasises
the need for a change in substantive law to recognise the rights of women. The
author suggests the possibility of a uniform civil code at least to the extent of
certain basic provisions across all religions and castes

5.1 Custom as a Source of Law

Law, is and has been for centuries an instrument of social regulation and of social
change. It therefore operates fundamentally, within society. Its targets are always
individuals and groups of individuals in society. Individuals and groups of people
in society however, over a period of time develop some form of rules and
regulations on their own, even before any 'legal system' as such comes into being.
These rules are often referred to as customs . Since, society pre-exists a formal
legal system, custom too exists prior to the advent of a legal system.
The evolution of a legal system, in most cases occurs from within society and not
externally. As a result, in the process of evolution of the legal system, certain
customs get transformed into or embodied in laws- resulting in the formation of
customary law. This process is characteristic of all legal systems, in different parts
of the world. Thus, in primitive society, custom and law may have been entirely
undifferentiated, however as time went by some of the customs would have
developed a form of official social sanction for non-compliance with them, while
others would have retained simple social sanction. The first category of these
customs gradually develops into law, in the evolution process.
Custom therefore played an important role in the development of any legal system.
It therefore is essential, while trying to understand a legal system, to comprehend
the complex process that led to the evolution of customary law. The Indian legal
system that exists today has its origins in the system of Common Law that emerged
in England. The Indian legal system, like the Common law system is replete with
customary laws and principles and hence it is essential that to comprehend the
Indian system, one understand the role of custom as a source of law.
Just as custom came to become an important source of law, it too however, over a
period of time lost its place of importance to other sources. These other sources
were codes, statutes and precedents. If custom has its origins in the behaviour of
people in society, then it is necessary for it to be embodied in the legal system at all
times.

5.2.Sources of Hindu Law

An understanding of Hindu law begins with the concept of dharma, which refers to
ones religious, legal, ethical, and social duties. Within Hindu law, the highest
source of dharma is the ruti, which literally translates as "what is heard." The
most important ruti literatures are the Vedas, which are of divine origin and serve
as the revelatory sources of Hindu law. The Vedas are the oldest sacred texts of
Hindu law; however, their importance lies not in the authorship or messenger, but
in the message itself. The Vedas consist of four books: Rig-Veda, Yajur-Veda,
Sama-Veda, and Atharva-Veda. The Vedas are written poetically as a collection of
songs and hymns. However, the Vedas do not represent positive law but are rather
considered the "the spirit of the law in Hinduism," giving guidance on the Hindu
way of life.
The next class of religious texts is the smriti, which literally means "what is
remembered. "The smriti began with sutrasideas and rules derived from the
Vedas formed in "maxim-like strings." The smriti was then further developed by
Hindu legal texts called dharmasastras. These sastras, or law books, have supreme
authority in Hindu law. Because the sastras are a direct product of the ruti, they
are considered sacred, though not as sacred as the ruti.
The most important of the smritis is Manus code, a set of laws compiled by Manu,
an ancient lawgiver that should be followed by all. This set of code was attributed
to Manu and thus, the name Manu was attributed to this landmark code. The Manu
Code is divided into twelve chapters. Subjects include origins of the world, sources
of law, marriage, the justice system, and penances. The Manu code of laws is
considered to be the most authoritative of all the smrits and whenever an
inconsistency arises, Manus code is set to prevail.
The commentaries and digests form a part of the third class of Hindu law
texts. These academic writings analyzed and interpreted the smriti texts and were
written from 700 to 1700 AD. Commentaries, called bhasya, are "linguistic
exegesis, hypothetical examples, and theoretical disquisitions on a single
Dharmasastra text." The digests, or nibandha, are much like the commentaries but
instead of analyzing a single dharmasastras text, they would explore a single topic
from a series of smriti texts.
Custom forms part of the fourth class of Hindu Law. Local customs, family
customs and class customs are the three main kinds of customs that have been
recognized by the courts. The courts have laid down certain essential tests in order
for a custom to be held as valid, as under,
The custom must be ancient - Custom passes on from generation to generation.
The fact that a said custom has been passed down through generations means that
the said custom has been reinforced over many years. This reinforcement occurs
when a lot of time has passed between when the practice of a said custom started
and its persistence. Custom which is basically a set of unwritten rules needs age for
it to be accepted and approved.
The custom must be continuous - this is another important requirement of
custom. Continuance implies that a said custom has stood the test of time, i.e. it has
not been conveniently adopted and rejected; however, a single instance of a breach
of custom would not render the custom invalid.
Custom must be uniform - this is related to continuity. A uniform custom would
imply that the said practice that was followed or being followed has not
deviated/changed from the custom that had been originally conceived.
Certainty - A custom must be certain. It should not be a figment of imagination,
rather its practice has to be proved by facts and not by opinion, reason or analogy.
Reasonableness and Public Policy - A custom must be reasonable to the parties
following the custom and should be in lines with the public policy. The latter takes
into account, the aspect of morality.
These are the main features of a valid custom. It should be noted that continuity,
certainty and uniformity overlap considerably.

Judicial Interpretation of "Custom" or "Usage"

The expression "custom and usage" has been defined under Section 3(a) of the
Hindu Marriage Act, 1955 as:
"3. (a) the expression custom and usage signify any rule which, having been
continuously and uniformly observed for a long time, has obtained the force of law
among Hindus in any 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."
Though by virtue of Section 4(a) of the Hindu Marriage Act, 1955 the Act has an
overriding effect on any pre-existing statutes, texts or customs for which provisions
have been made under this Act.
"4. (a) 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 this Act shall cease
to have effect with respect to any matter for which provision is made in this Act."
The Act has several provisions under which customs of communities override the
codified conditions. As the Hindu Marriage Act, 1955 is inclusive of all other
communities that are not Jewish, Parsi, Muslim or Christian. It is important for the
Act to recognize all other customs and ceremonies of different communities for a
marriage to be held valid under this Act. However, a careful study of the judicial
precedents indicate that the use of custom as a source of law has in fact affected the
rights of the parties concerned and women in particular with respect to validation
of marriages and bigamy.

6.Case
In the case of Surajmani Stella Kujur v. Durga Charan Hansdah, the issue that
arose before the court was the validity of a custom which does not explicitly make
the solemnization of a second marriage void. In the case mentioned, the appellant
belonged to Oraon and the Respondent to Santhal tribes. The appellant conceded
that the parties being tribals, who otherwise professed Hinduism, are not governed
by the Hindu Marriage Act but by their Santhal customs and usages. The Supreme
Court in its judgement relying on Ramalakshmi Ammal v. Sivanantha Perumal
Sethurayar where it was laid down that,
"It is of the essence of special usages, modifying the ordinary law of succession
that they should be ancient and invariable; and it is further essential that they
should be established to be so by clear and unambiguous evidence. It is only by
means of such evidence that the courts can be assured of their existence, and that
they possess the conditions of antiquity and certainty on which alone their legal
title to recognition depends." held that mere pleading of a custom stressing for
monogamy by itself was not sufficient unless it was further pleaded that second
marriage was void by reason of its taking place during the life of such husband or
wife. In order to prove the second marriage void, the appellant was under an
obligation to show the existence of a custom which made such marriage null,
ineffectual, having no force of law or binding effect, incapable of being enforced in
law or non est. The complaint and the appeal were dismissed as there was no
pleading as to the custom annulling the second marriage.
Similarly, in Bhaurao Shankar Lokhande v. State of Maharashtra treated as a
precedent by the Indian courts, a neo-buddhist husband appealed against his
conviction for bigamy. He had married another woman during the lifetime of his
first wife. On appeal to the Supreme Court, it was argued on behalf of the husband
that the essential ceremonies for a valid Hindu marriage were not performed when
he underwent the second marriage ceremony and therefore it was not a legally
valid marriage under Hindu law. The Supreme Court held that, "it was essential for
the purpose of Section 17 of the Act, that the marriage should have been celebrated
in due form. Merely going through certain ceremonies with the intention that the
parties be taken to be married will not make the ceremonies prescribed by law or
approved by any established custom". The Supreme Court further cited Mullas
Hindu Law to state,
"There are two ceremonies essential to the validity of a marriage, whether the
marriage be in the Brahma form or the Asura form, namely Invocation before the
sacred fire, and Saptapadi, that is, the taking of seven steps by the bridegroom and
the bride jointly before the sacred fire."
The Supreme Court stuck to the rigid definition of custom and held that since there
was no evidence that the performance of essential marriage ceremonies were
completed, the marriage was held to be void allowing the husband to escape
prosecution though it is evident that he had committed bigamy.
Judicial decisions are replete with such decisions where either party to the
marriage, when a suit for maintenance or bigamy is brought use non-performance
of customary ceremonies to annul the marriage. There are several instances in
which by all other standards, cohabitation, parties living together as wife and
husband, children and other requirements or indicators are satisfied but due to the
non-performance of a ceremony the marriage has been annulled. One such instance
is Gullipilli Sowria Raj v. Bandaru Pavani @ Gullipili Pavani where in the
appellant who was a Roman Catholic Christian married the respondent, a Hindu
woman under the Hindu marriage act in accordance with Hindu customs. The
respondent bought a suit thereafter against the appellant for nullifying the
marriage. The main ground for declaring the marriage to be a nullity was mainly
misrepresentation by the appellant regarding his social status and that he was a
Hindu by religion, although it transpired after the marriage that the appellant and
his family members all professed the Christian faith. The trial court dismissed the
suit whereupon the respondent appealed to the High Court which upheld the
validity of the marriage. The husband appealed the decision to the Supreme Court.
Wherein the court referred to the preamble of the Hindu Marriage Act which reads,
"An Act to amend and codify the law relating to marriage among Hindus."
Further, they held that The usage of the expression `may' in the opening line of the
Section 5, in our view, does not make the provision of Section 5 optional. The
Supreme Court dismissed the appeal but held the marriage to be a nullity thereby
affecting the rights of the woman in the instant case.
Further, in Balusami v. Balakrishna, T. Ramaswami Reddiar died leaving behind
him his second wife, his fourth wife, and children by the deceased third wife and
the fourth wife. First wife had predeceased him, T. Ramaswami Reddiar married
his first wifes daughters daughter (i.e. his granddaughter) and had three sons with
her. It was alleged that the marriage between granddaughter and T. Ramaswami
Reddiar is incestuous, also that the sons produced were due to adulterous relations
of granddaughter. Whereas they counterclaimed that the custom prevalent in their
community allows for such incestuous marriage.
The court held that the alleged custom is revolting to all principles of morality,
decency and eugenics. No civilized society can accept such custom. The marriage
between a man and his daughter's daughter comes within the prohibited degrees of
relationship (Mitakshara) seventh degree from fathers side, and fifth from
mother. As very few cases of such marriage have been reported it is not conclusive
that such marriage is custom. Moreover, it was held that no custom, which is
opposed to public policy can be recognised by any Court of law. Nor can immoral
usages, however much practised, be countenanced. As to the test of immorality it
must be determined by the sense of the community as a whole and not by the sense
of a section of the people.
Therefore, a custom which is abhorrent to decency or morality, however long
practiced and recognized by a particular community can find no kind of
enforcement by a court of law. Here the court deferred from strict reading of
customary practices and held that such a relationship is void.
The appellant S. Nagalingam married respondent Sivagami. Three children were
born from that wedlock. The respondent alleged that the appellant started ill-
treating her and on many occasions she was physically tortured. As a result of ill-
treatment and severe torture inflicted by the appellant as well as his mother, she left
her marital home and started staying with her parents. While so, the respondent
came to know that the appellant had entered into a marriage with another woman,
by the name of Kasturi, and that the marriage was performed in a marriage hall at
Thiruthani. The question before the court was whether the second marriage was
valid to constitute an offence under Section 494 of the Indian Penal Code, 1860.
The Court held that under such circumstances, the provisions of Section 7-A,
namely, the Tamil Nadu State amendment inserted in the statute are applicable and
there was a valid marriage between the appellant and Kasturi. Moreover, neither
the complainant nor the appellant had any case that for a valid marriage among the
members of the community to which they belong, this ceremony of "saptapadi"
was an essential one to make it a valid marriage. "Saptapadi" was held to be an
essential ceremony for a valid marriage only in cases where it was admitted by the
parties that as per the form of marriage applicable to them that was an essential
ceremony. The appellant in the instant case, however, had no such case that
"saptapadi" was an essential ceremony for a valid marriage as per the personal law
applicable whereas the provisions contained in Section 7-A are applicable to the
parties. In any view of the matter, there was a valid marriage between the appellant
and Kasturi. Therefore, it was proved that the appellant had committed the offence
of bigamy as it was done during the subsistence of his earlier marriage.

7.Conclusion
Custom in the Hindu Marriage Act had to be included to bring the various
ceremonies that constitute marriage under the category of Hindu, but what was
deemed necessary to validate marriages has turned out to be a ground for nullifying
marriages in order to escape marriage or to avoid prosecution for bigamy.
The various religious personal laws never contemplated cross-religious marriages
or modern domestic relationships. Moreover, with written texts, customs and
commentaries based on the patriarchal construction of the society, the use of these
sources as valid law is prejudiced towards men. While there are instances where
the rights of men have been violated due to the interpretation of the word custom,
it is largely women who have suffered. As is evident from various judicial
decisions discussed above as well as those that have not found a mention here,
there is an immediate need for a uniform civil code.
While the arguments for and against uniform civil code are many, there are at least
a few regulations that need to be adopted across all religions and castes regardless
of customary law. In the interests of women, who are most of the victims, it is
necessary to criminalise polygamy (bigamy), make registration of marriages
mandatory and liberally interpret the term custom, to include any ceremony, with
evidence of such ceremony to be a valid marriage.
8.Bibliography:

Jurisprudence the legal theory Author-Dr. B. N. Mani Tripathi

Jurisprudence by Nomita Aggarwal
Website:
Jurisprudence and Legal Theory-S.P.Dwivedi

Studies in Jurisprudence and Legal Theory-Dr. N.V.Paranjape

http://itslaw.blogspot.in/2012/07/classifications-of-law.html
http://heinonline.org/HOL/LandingPage?
handle=hein.journals/llj50&div=64&id=&page=
https://www.jstor.org/stable/1008699