(..4..)

CUSTOMARY PRACTICES AND STATE REGULATION

SYNOPSIS

III] THE INTERSECTION OF CUSTOM AND LEGISLATION

IV] JUDICIAL LANDMARKS & CONSTITUTIONAL VALIDITY OF CUSTOMS

1) The Supremacy of Constitutional Morality over Customary Practice

2) Striking Down Customary Personal Laws That Oppress Women

3) Judicial Enforcement Against Dowry and Marital Cruelty

----------------

THE ROLE OF CUSTOM IN SOCIETY: TRANSITION FROM TRADITION TO LAW

I] INTRODUCTION

Custom plays a foundational role in the legal and social architecture of all civilizations. Historically, legal frameworks—including English Common Law—developed primarily from deeply ingrained customary practices. Far from being static, customs evolve across time and space, fundamentally moulding the behavior of individuals and shaping collective social consciousness.

Sociologically, customs are the articulated, repetitive practices of a community preserved over generations. They exercise pervasive control over almost every sphere of human existence, dictating linguistic nuances, marital rites, and life-cycle rituals from birth to death.

II] THE DUAL NATURE OF CUSTOM

While customs act as vital instruments of social cohesion and cultural preservation, they are not inherently moral or progressive. Alongside benevolent traditions, many inhuman, barbaric, and brutal customs have persisted globally.

In the Indian context, several regressive customary practices institutionalized structural violence, gender discrimination, and social exclusion. These include:

1. Sati: The immolation of a widow on her husband's funeral pyre.

2. The Devdasi System: The ritualized dedication of young girls to deities, which frequently degenerated into systemic sexual exploitation.

3. Human Sacrifice: Ritual killings offered to deities to appease supernatural forces.

4. Untouchability: A discriminatory caste-based custom enforcing strict social segregation and degradation.

5. Dowry, Child Marriage, and Concubinage: Practices that historically compromised the agency, health, and dignity of women.

While ancient civilizations like Greece, Rome, and India boasted profound cultural and intellectual advancements, the unchecked continuation of these oppressive customs severely hindered holistic societal growth, human rights, and economic development.

III] THE INTERSECTION OF CUSTOM AND LEGISLATION

Statutory legislation has consistently served as the primary tool for eradicating regressive customs. However, the eradication of deeply rooted traditions cannot be achieved by statutory decrees alone; it requires deep-seated social cooperation, structural shifts, and strict judicial enforcement.

The battle against these social evils is reflected in an array of definitive Indian legislations:

1. The Abolition of Sati Act, 1829 (and the modern Commission of Sati (Prevention) Act, 1987).

2. The Prohibition of Child Marriage Act, 2006 (amended to progressively standardize the minimum age of marriage).

3. The Dowry Prohibition Act, 1961.

4. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (enforced to eradicate the practice of untouchability under Article 17 of the Constitution).

IV] JUDICIAL LANDMARKS & CONSTITUTIONAL VALIDITY OF CUSTOMS

Under modern jurisprudence, a custom is only recognized as a valid source of law if it is continuous, certain, reasonable, and—most importantly—consonant with constitutional morality. Under Article 13 of the Indian Constitution, any custom or usage that violates Fundamental Rights is deemed null and void.

1) The Supremacy of Constitutional Morality over Customary Practice

When ancient religious or cultural customs clash with individual fundamental rights, the judiciary consistently favors constitutional principles like gender equality (Article 14) and the right to live with dignity (Article 21).

Important Case Law: Indian Young Lawyers Association v. State of Kerala (2019) 11 SCC 1 (The Sabarimala Case)

Significance: The Supreme Court ruled that exclusionary customs, even if practiced for centuries, cannot override the fundamental right of women to worship. The court emphasized that "constitutional morality" must always supersede customary or religious rules that promote discrimination.

2) Striking Down Customary Personal Laws That Oppress Women

Customary practices governing marriage and divorce cannot violate a citizen's basic human dignity.

Important Case Law: Shayara Bano v. Union of India (2017) 9 SCC 1 (The Triple Talaq Case)

Significance: The Supreme Court declared the customary practice of Talaq-e-Biddat (instant triple talaq) unconstitutional, noting that arbitrary customary practices cannot bypass constitutional protections of equality and non-discrimination.

3) Judicial Enforcement Against Dowry and Marital Cruelty

Despite stringent laws, customs like dowry persist, forcing courts to take an unyielding stance on custom-driven violence.

Important Case Law: Rajnesh v. Neha (2021) 2 SCC 324

Significance: The Supreme Court streamlined the mechanisms for financial protection and maintenance for wives, ensuring that regressive arguments rooted in customary financial dependency cannot be used to bypass socio-legal accountability.

V] CONCLUSION

Customs remain a powerful mirror of a society's past, but they cannot be allowed to chain its future. The socio-legal evolution of India demonstrates that for a civilization to progress, archaic customs must actively bend to the rule of codified law and human rights. True development requires a dual approach: robust statutory legislation backed by unyielding judicial enforcement, paired with a collective cultural shift toward social justice.

*****

[A] CONCUBINAGE

SHORT NOTES

1. Concubinage

SYNOPSIS

[A] CONCUBINAGE

I] ETYMOLOGY AND MEANING

II] DEFINITIONS AND CONCEPTUAL DISTINCTIONS

1) Standard Definitions

2) Comparative Distinctions

III] STATUS UNDER CLASSICAL HINDU LAW

IV] HISTORICAL CASE STUDY ANALYSIS

V] CONTEMPORARY LEGAL POSITION AND METAMORPHOSIS

1) Exclusion Under Summary Criminal Maintenance Laws

2) Protection Under the Domestic Violence Act, 2005

3) Landmark Supreme Court Precedents on Live-in Relationships

-------------------

CONCUBINAGE: LEGAL STATUS, HISTORICAL PERSPECTIVES, AND MODERN TRANSITIONS

I] ETYMOLOGY AND MEANING

The term concubinage connotes a state of a man and a woman cohabiting and living together as husband and wife without being legally married.

1. Etymology: The word concubine is derived from the Latin prefix con- (meaning "with") and the verb cubare (meaning "to lie down").

2. Core Concept: It implies a continuous, non-marital cohabitation where a woman consents to live with a man on a stable basis without the legal status of a wife. In historical or older legal terms, she was frequently referred to as a "kept mistress."

II] DEFINITIONS AND CONCEPTUAL DISTINCTIONS

1) Standard Definitions

a. The New English Dictionary: "A woman who cohabits with a man without being his wife; a kept mistress."

b. Ballantine’s Law Dictionary: “Concubinage is regular illicit intercourse with a man to whom she is not a wife.”

In essence, a concubine functions socio-behaviorally as a “wife without a legal title.” The relationship does not necessarily need to span decades to be classified as concubinage, but it must exhibit an element of stability and permanence as opposed to a casual, fleeting encounter.

2) Comparative Distinctions

To understand concubinage clearly, jurisprudence historically distinguished it from other social statuses:

Category	Legal / Social Status
Wife	Enjoys complete legal, social, and ceremonial sanctity with permanent socio-economic guarantees.
Concubine	Below the status of a wife; lacks legal title and matrimonial guarantees but is exclusively reserved by and dependent on one man.
Harlot / Prostitute	Solicits casual, commercial sexual relationships with multiple partners without domestic cohabitation.
Elopement	The act of a woman running away from her marital home with a paramour. This is structurally distinct from concubinage, as the initial act is rooted in adultery and does not immediately establish a stable, quasi-domestic household.

III] STATUS UNDER CLASSICAL HINDU LAW

Under classical Hindu law, a concubine held a recognized, quasi-legal status that entitled her to certain maintenance rights out of her paramour's estate after his death, provided she satisfied strict criteria. Such a woman was explicitly termed an Avaruddhastri (a continuously kept, dependent mistress).

According to the ancient texts of Katyayana and Narada, an Avaruddhastri qualifies for maintenance if she fulfills the following conditions:

1. Exclusivity and Continuity: She must be under the exclusive and continuous open custody of her paramour.

2. Non-Adulterous Status: The connection must not be transient or casually adulterous (e.g., she cannot be concurrently married to another living man).

3. Sexual Fidelity: She must maintain strict sexual fidelity toward her paramour throughout the relationship and even after his death to sustain the claim against his estate.

The Underlying Jurisprudential Principle: The legal obligation to maintain an Avaruddhastri rests on equity. Because she lived openly as a dependent, restricted member of the family—accepting the social limitations of married life without its privileges—she could not be left destitute upon the patriarch's death.

IV] HISTORICAL CASE STUDY ANALYSIS

Ningareddy v. Lakshmawa (1901) ILR 26 Bom 163

Facts: A Hindu man named Govindareddi brought a woman, Lakshmawa, into his house while his legal wife, Venkawa, was away living with her parents due to a prolonged illness. Lakshmawa lived with him as his mistress. When Venkawa recovered and returned home, Govindareddi did not abandon Lakshmawa; he continued to openly maintain and visit his mistress until his death in 1897.

Judgment: The Bombay High Court recognized Lakshmawa’s claim. The Court ruled that an Avaruddhastri (continuous concubine) is legally entitled to maintenance out of the estate of her deceased paramour, provided the relationship was open, faithful, and non-adulterous.

V] CONTEMPORARY LEGAL POSITION AND METAMORPHOSIS

The historical custom of keeping a concubine often arose because strict monogamy laws (introduced via the Hindu Marriage Act, 1955) criminalized bigamy. Men would enter into secondary relationships secretly or through invalid ceremonies, leaving the second woman with the social status of a concubine.

Modern Indian law has evolved drastically to protect women in these vulnerable positions, shifting away from the archaic label of “concubine” toward the modern concept of Live-in Relationships.

1) Exclusion Under Summary Criminal Maintenance Laws

Historically, a concubine could not claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 (CrPC), because the term "wife" strictly meant a legally wedded wife.

Current Legislative Update (2026): The CrPC has been repealed and replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (effective 2024). Under Section 144 of the BNSS (which replaces Section 125 CrPC), the statutory remedy for summary maintenance remains strictly reserved for a legally wedded wife, preventing a casual mistress or concubine from claiming summary relief.

2) Protection Under the Domestic Violence Act, 2005

While summary criminal law excludes her, The Protection of Women from Domestic Violence Act, 2005 (PWDVA) provides extensive socio-legal relief. Section 2(f) of the Act protects women who live in a "relationship in the nature of marriage."

3) Landmark Supreme Court Precedents on Live-in Relationships

The distinction between a legally protected live-in relationship and an unprotected, exploitative arrangement (historically called concubinage) has been clearly defined by the Supreme Court:

D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469

Significance: The Supreme Court held that not all live-in relationships qualify for maintenance. To be considered a "relationship in the nature of marriage" under the DV Act, the couple must hold themselves out to society as akin to spouses, be of legal age to marry, be otherwise qualified to enter into a legal marriage, and have voluntarily cohabited for a significant period. A woman kept purely for sexual/domestic purposes while the man is concurrently married does not qualify as a live-in partner; she remains a mistress/concubine and cannot claim dynamic benefits under the DV Act.

Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755

Significance: The Court explicitly discussed the status of a "concubine" in modern law. It ruled that if a single woman enters into a live-in relationship with a married man, knowing he is married, the relationship amounts to concubinage. Such a relationship is not "in the nature of marriage" under the PWDVA 2005, and she cannot claim relief under this specific Act, as it would disrupt the legally wedded wife's rights.

Badri Prasad v. Director of Consolation (1978) 2 SCC 527 / Re-affirmed continuously through 2026

Significance: The judiciary maintains a strong legal presumption in favor of wedlock. If a man and a woman live together continuously for a long period of time as husband and wife, the law will presume they are legally married, and the burden of proof lies on the party trying to prove they were merely living in concubinage.

*****