Customary law prevails over statutory law: SC

Customary law prevails over statutory law: SC
New Delhi, Jun 12 (PTI) In an important judgement on application of customs in the matter of family law, the Supreme Court has held that the customary law will prevail over the statutory law in cases where the legislation is silent on the issue.

"As statutory law did not exclude the applicability of the customary law, the customary law would prevail over the statutory law," a Bench comprising Justice S B Sinha and Justice Markandey Katju said in a recent judgement.

The Bench also brushed aside the contention raised during the argument that validity of customs must be judged on the touchstone of justice, equity and good conscience.

"It is one thing to say that customary law had no application or the custom had not been proved and quite another to say that despite its acceptence and proof, the same should not be applied on the ground of equity, justice, and good conscience," the Court said.

The court passed the order on a petition filed by the legal heirs of one Ass Kaur challenging the Punjab and Hary property of her father.

The High Court had, on the basis of the "Zimindara" custom followed by the Sidhu Jats which stays that on the death of the first wife, the other surviving wife takes the property, granted the rights over the property to her step mother Raj Kaur.

The daughter contended that she should succeed as heir of her father under Hindu Law of Inheritence Act, 1929 and reliance upon the customary law by the Court was misplaced.

But the Apex Court, not satisfied with the contention said, "If the intention of the makers of the statute in the 1929 Act was to completely exclude the applicability of the customary law, it would have been said so explicitly."

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