How Customs Affect Indian Marriages - A Legal Perspective

Did you know that when customs clash with laws, it is customs that take precedence in many cases, especially in an Indian marriage? Yes, it’s true that under Hindu, customs play a vital role, particularly in marriage and matters pertaining to divorce under the Hindu Marriage Act 1955.  Various sections of the Act have references to customs that help in saving marriages.

Take a look at section 5(iv) and (v), which refers to exceptions where customs save a marriage, even if it is within the degrees of prohibited relationship. Similarly, under the HMA, a child must be below 15 years of age to be adopted. However, if customs allow adoption of an individual above this age then it will be valid.

Hindu Marriage Act: What are the Essentials of a Valid Custom?

Under the Hindu Marriage Act, a custom is valid only if it is

• reasonable.
• clear and unambiguous.
• long-standing or is being observed from the time of yore.
• in continuous observance.
• If it is discontinued once, it ceases to exist.
• In consonance with public policy because a custom will not be enforced if it is opposed to public policy.
• Not expressly forbidden under any law.

Hindu Marriage Act: How Customs Affect Bigamy

In Dr Surajmani Stell Kujar v Durga Charan Hansdah (2001) 1 Femi-Juris CC 96 (SC), the issue related to a bigamy case. This happened when the second marriage was conducted under the customary law. The Supreme Court had dismissed wife’s appeal as to declare a criminal liability; it was held that the complainant must provide evidence to all the existential ingredients to the crime, defined by a statute. In this case, the appellant was unable to prove any such custom.