Law as a Product of Tradition and Culture in India

Law, as an instrument of social order, is deeply intertwined with the traditions and culture of a society. In India, a country with a rich and diverse cultural heritage, the influence of tradition and culture on the legal system is profound.

Understanding Tradition and Culture

Tradition

Tradition refers to beliefs, principles or ways of acting that people in a particular society or group have followed for a long time. It is a long-established custom or belief handed down from generation to generation, often shaping the social fabric and daily lives of communities.

Culture

Culture encompasses the way of life, including the general customs and beliefs, of a particular group of people. It includes language, religion, cuisine, social habits, music and arts that are characteristic of a community.

Law as the Product of Traditions and Culture

Tradition and Culture as Connectors to Religion

In India, tradition and culture are often closely connected with religion, which has historically been the origin of many laws. Indian laws have evolved significantly from religious scriptures and customary practices.

Family Law and Tradition

India is home to diverse religious communities, including Hindus, Muslims, Christians, Parsis and Jews. Family laws in India are largely limited to matters such as matrimonial relations, maintenance, succession, wills, partitions, religious endowment, adoption and guardianship. For instance, the law of the Quran governs Muslim family matters, while the law of Shastras is applied to Hindu family issues.

Tradition of Sati

One of the most well-known traditions in Indian history is the practice of Sati, an ancient Hindu custom where a widow would immolate herself on her husband’s funeral pyre. The origin of Sati is uncertain, but it is often linked to the legend of Sati, the wife of Lord Shiva, who self-immolated in protest against her father’s insult to her husband.

Ancient scriptures largely disapproved of Sati, asserting that one should not die before their destined time. Despite this, Sati was practised until it was formally banned in the Bengal Presidency on December 4, 1829, by Governor Lord William Bentinck. The regulation made it illegal and punishable under criminal law. The ban was challenged but finally implemented in 1832.

While the abetment of Sati did not find a specific place as an offence under the Indian Penal Code (IPC), the judiciary has held that it constitutes abetment of suicide, punishable under Section 306 IPC.

Tradition of Polygamy

Polygamy existed in India without restrictions, except under Mohammedan law, which limited a man to marrying no more than four wives. The Indian Penal Code (IPC) of 1860 made bigamy a specific offence under Section 494. The Indian Christian Marriage Act of 1872 further prohibited polygamy among Christians.

Tradition of Child Marriage

During colonial times, child marriages were common in India. These marriages were often conducted without the spouses understanding the meaning of marriage.

In 1929, the Child Marriage Restraint Act was passed, which restricted but did not abolish child marriage. Under this Act, a child was defined as a male under 21 years or a female under 18 years. Despite the law and religious prohibitions, child marriage persists in some regions. According to UNICEF, about 70% of marriages still occur below the statutory age.

Tradition of Adultery

Traditionally, Indian society viewed adultery as a severe offence. While the IPC, under Section 497, considered adultery a crime, in England, adultery was not criminalised. The makers of the IPC were aware of Indian traditions and included provisions accordingly.

Status of Husband and Wife in India

During colonial times, married women in India faced serious legal irregularities. A married woman could not sue for any tort committed by a third person unless her husband joined her as a plaintiff. Conversely, she could not be sued for a tort unless her husband was made a defendant. This reflected the British practice of treating husbands and wives as separate legal entities.

Traditional System of Dispute Settlement

Traditionally, disputes in Indian villages were settled by the Gram Nyayalaya (village court), where community elders would adjudicate cases. This system was gradually replaced by formal courts established by the British, leading to the current legal infrastructure.

Tortious Liability of the King and State

Under English law, the maxim “the king can do no wrong” meant the monarch was not liable for personal wrongs or public affairs. This principle, adopted in colonial India, influenced the legal system but also conflicted with Indian traditions of holding rulers accountable.

Law as a Product of Tradition and Culture in India Summary

Indian law is deeply influenced by the country’s diverse traditions and cultural practices. Family laws, for instance, are shaped by religious scriptures like the Quran for Muslims and Shastras for Hindus. Practices like Sati and child marriage, once rooted in tradition, were later banned by formal legislation.

The legal status of women, dispute settlement systems, and views on polygamy and adultery reflect historical customs. British colonial rule introduced changes, but many traditional elements persisted. Today, Indian law is a blend of ancient traditions and modern legal principles, highlighting the complex interplay between cultural heritage and legal development.