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Custom And Law; An End To Unveil The Paradox Of Life: An Indian-African Comparative Study

Auguste Comte, of the saying held strong on the view, that society is to be driven on scientific methodology, in devoid of any metaphysical elements, the convention that dip hard since of the time society has evolutes. Customs and usages, of its root since of being imbedded to invoke to be the primitive source of law, the effects of such still at present accentuates to have influence on it. Durkheim therefore when said, that law is the measuring rod of the society, a view contradictory usher to strike and form conflicts of it, because customs and usages often traced to be the inherent moves for the folks behaviour.

Marriage, inheritance, succession and religious walks of life when constitutionally mandated to take shape of it, long leaden headed obstacles hogged in shape of the customs and usages conceive of the infinite perils for the progressive world. Both the countries, India and Africa, are in its evolution smother to take the primitive practices, in shaping much of its laws, which in times has become the subject of debate in between the constitutional and the orthodox view.

The paper in its endeavour takes the role of unveiling different of the contours that of times rampant across, where in practices rights for the citizenry rudimentary in character stand in conflicts.

The methodology for the paper is doctrinal, which the author in assessing the customary spirits of the society, would consider in view different of its practices of both the countries, and jurisprudentially would lean to testify such practices on the constitutional mandates. The author therefore would study variety of the societal traits, both of India and Africa in consideration, and would try to trail blaze the beneficiary rights of the people.

Introduction
Customs and usages, for the society always found to be of great impact in constituting the laws of a country, and so is the case of Africa and India. Marriages, inheritance and succession, and others where governance of personal laws are of great ambits to influence upon, customs and usages which of the time are in practice since of the time unknown traced to have great impacts upon them. Independency for the nations always for stand unravels the path, where advancement in areas of shunning atrocities is traced to be of great importance. The conflicts therefore of the pre-independence practices, and post to it are of constant hustle to make through a middle ground emerging.

Custom in practice what of time is unveiled, that in exercise sexual denominations is often found to have been rampaged blatantly. One part of the sex, the female who of times through every custom of the societal border across, reckoned as adjunct to the practices to the group for society in exercise, was in results found to have deprived relentlessly. The society in nature behind emanating practices like such, called as customs, an innate force though drawn to be the impetus in roll, often in revelation through researches and understanding rests, that political motivation and social condition played the mastery behind of it.

Custom for Salmond what speak off, that of those embodiments the principles are, which are commended themselves towards public utility and principles of justice. Allen called it as social and legal phenomena, ushered through the inherent forces of society.[1]

Customary Practices in African Nexus

Since of time debate between the activists and conservatives is on surface to discuss indefinitely, whether customary law is to prevail over the constitutional norms, the point that swollen to be the moot of discussion, that how far the customs for the time has become matured to be accepted by the civilized world. The practice that traditionally of the conscience in exercise, where equality stand as myth, what to an extent that has formed to be a matter of public utility and national conscience, standing still being a matter of determinability in need of proper justification and rationality.

Africa to that delved in highness of the practices that in times being decked upon. Constitutions though several of the regions call equality, dignity and non discrimination as the nexus for civilization, in practice the surface is mushroomed with such exercise, where women being considered as the second class citizens. Marriage, inheritance, bride price and guardianship, the areas in which through customs the exercise being rampaged, inevitably to that certain inherent rights of the women found discriminatory in practice.

Bride Price, for the country Ghana, a practice pre-colonial to the British rule in exercise it plays. The groom for the marriage to the bride, certain price being paid, which in pre-colonial time, was not in money being given than in materials. The practice which at present smother to stir, where negotiation between the two families beseech, a list containing the demands provided to the groom to comply in knotting wedlock with the bride.

The practice over the times produced psychological implications both for the men and women. A kind of practise through times usher, what projects in practicality, that men of this price paid by them to bride often ratifies them to invoke tyranny, which the bride on the other conditioned of being consumed, surrender to such tyrannical beset.[2]

The early practices of breast ironing, virginity testing, female genital mutilation, early forced marriages, widow's rituals, are all of a kind originated from the customary practices. In deprivation of the women these customs were always perceived to be cherished at large. A history amalgamation of African originally hailed from and African White in colour, who of the much by western thoughts and implications bestows their lives upon, while the former being much oppressed, contemplated within the community needs and principle of collectivist.[3]

To make through of the fact that in regards the customs in their nature evolutes can be distinguished in three acknowledgements. The first is of the pre-colonial era, the second to which stand with the post constitutional era when new constitutions were ascribed and the third one is in the post democratization era. Courts where fundamentally plays role of being guardian for the rights of the citizens is of fact a matter of significant determination, when most of the customs prevalent found to be discriminatory for the women at large.

In the colonial era, time for the country stood gloomy as it itself delved into violation of human rights. No urge of the people in deprivation heard of or had any heeds being paid off. It was for them living within the shackles of indignation. British people with their introduction got hogged in the customary practices in nature, erected the distinction between the Africans and Europeans.

Quite obvious to which justice administrative system being fisted in the British governance rule being made that special emphasise be given in determining conflicts, where in consideration customs, cultures and traditional practices asked to be taken in cognizance of. The Royal Charter of Corporation, sec 14 of which emboldened differentiation to cause for the Rhodesia to the British South African Company.[4] The kind of courts in its manifestation stands in the French Courts model and English Court Models.

Customary Laws in application met with two of the conditions to satisfy in needs, where the one was that the law to the morality, justice and equality standing repugnant, and the second is that the law in terms of its application went against the written laws. In repugnancy several of customs found distressful, woman to woman marriage, liability of the family for wrongs committed by one of its member or paternal rule.

Post colonisation and pre democratization of 1980, customary law in together with the common law were considered as the source of law. Independency for the country in the year 1960 brought for it the new constitution, where discrimination on virtue of written customary law stand prohibited.[5]

Post Democratization for the country brought resilience to the customary law in practice. The constitution given into force subjected the customary law in exercise, where parameter to make customary law at parlance to function as per constitutional mandates is what the vision looks for.[6] In case of Shilubana vs. Nwamitwa, Justice Van Der Westhuizen well explained that customary law has a status that requires respect.[7]

In furtherance the case of Alexkor vs. Ritchersveld Community, it was held by the South Africa constitutional court that customary law is the integral part of law and an independent source of norms within the legal system.[8] The Bills of Rights further firm the saying on stand that any customary law goes inconsistent with the constitutional provision to that an extent of that law shall be considered as void.

Kenya to all other countries advanced by ratifying the principle of implicating the international customs and treaties to which Kenya is a part. Art 2(6) of the Kenya's constitution emboldened the fact that to any international treaty to which Kenya has given ratification such principle within the Kenya's municipal law will become the part of.

The conflicts in between customs and the constitutional mandates has always been unfurled high, across the world of which debates and views of the erudite exchanged. Countries in modern world still stagger to raise the wall of rationality against the customary practices that are in practices rampant in character.

Judicial Exploration

International Covenant on Civil and Political Rights in its art 26 has mentioned against discriminations before any law. Equality before law is the fundamental principle to which everyone in equals subjects to. Traditional justice administrative system if of acknowledgement being unravelled under its manifesto its stand then to be the hardest job to accomplish finitely.

A discriminative practice before the law treated in a biased manner, and to that in devoid of rationality, provides a leeway for the practices over the time to get conditioned unequivocally. Since across the time equality in the eye of law is standing beyond the ambit of being myth, certain steps looking therefore fructifying the situations from being obscure any further. Issues on inheritance, widow and taking custody of children is still being at hover.

In a case where four sisters till to their mother's death bestowed responsibility in renovating their property, customary law to them doesn't give them the right to inherit, the lower court and the district court ruled against their favour, but in appeal the court ruled in their favour. [9] South African constitutional courts have perched observation of the common law and customary law to have parlance with the constitutional mandates, and in place found the former to have declined to the latter the responsibility so soaked to be of the judges of the constitutional courts to develop them.[10]

In Tanzania, Ephraim vs. Pastory, the case in which determined at first that in spite of women in inheriting properties unlike men standing in contrary, but still in disposing them they does not to that hold absolute rights. The case on appeal swung, and held that the practice in customary law bound was discriminatory in practice.[11]

Customary practices are of nature when made given for the particular society to regulate it, but to the times in evolution of the societal traits the facets of customs become the ornaments of benefits which fructify only one sect of people, and women therefore to which anywhere in the world found to be in deprivation of such practices. In the case before Botswana High Court, Attorney General vs. Dow, on customs and traditions it was stated that custom though yielded to an express legislation but it is impossible to override the constitutional mandates by the customs and traditions.[12]

Customary practices in India's Nexus

Illustrious India in roots and ambits, practices where imbedded within strict religious ordain, and people to which keeps their creed in perpetuity, practices since of time for the soil entangled with the religious claim. Scriptures from the Vedic ages stand evident for the practices that for the land erect. Customs to the land was inevitable, which in course developed in variance in substantiating equality for the people in the society.

The laws today in India followed are of most personal in character, customs to which plays the important role to cater. Hindu for whom Hindu personal law is the genesis to drive, for Muslims, Muslim personal law is the moot to administer life. Early of the time prior independency when in conflicts matter being placed before, point of contrary happened to be the law of which religion stand applicable. Chaotic and non-uniform was the situation to acknowledge with. Early of the times since the land is devoted mostly to divinity, practices therefore to that unleashes is in nature of customs and usages for the society.

Creed where for the land stand epitome in fabrics often in practice of which discrimination hatch inevitably, the common in nature discrimination for the women renders attention. One of the early custom stands prohibited is "Sati", the practice where for the demised husband in remorse the widowed wife who often of a younger age found set herself on pyre with the husband burning on the funeral.[13]

The practice based on the religious claim, in scriptures where found Goddess Parvati for ill-treatment of her husband Lord Shiva performed "sati", genesis to which the practice solemnly considered to be sacred and pure. The tyranny of being despot of the practice continued to vanquish lives of the women till the English people invaded in the name of East India Company. Revolt to which therefore taken place, abolition for which was claimed, and intellect of the then Ishwar Chandra Bidyasagar and Raja Ram Mohan Roy brought for the reforms. Widow Remarriage Act was enacted and the arbitrary custom was put to an end.[14]

Inheritance, women were sabotaged from exercising their rights on their ancestral properties; adopting child to them was also prohibited.[15] Property rights for the women has always been a matter of hurdles since of the time after several of the amendments done to the legislations, in the year 2020 through the Supreme Court of India judgement in the case of Vineeta Sharma vs Rakesh Sharma equal rights to the women on inheritance was given.[16]

Independency for the nation brought for the land a new dimension to usher, objectivity for the land set forth to bring unity within the diversity. Since the land of the end strongly imbedded within the religious domain, customs for the life became an inevitable path to unravel. Custom in a definition given status of law, where in sec 2(a) of the Hindu Marriage Act 1955 states to be a practice that continuously and uniformly practiced without interruption and not opposed to the public policy, in subscription to which the practices since of time in perpetuity performed uninterruptedly and uniformly.

"Saptapadi" in pursuance to which under sec 7 of the Hindu Marriage Act has given of the condition essential to fulfil marriage, in nature the practice of which concern to take the seven steps around the fire by both the bride and the bridegroom in accomplishing the wedlock between them.[17] Constitution on that given sanction under Art 13 to consider custom as law, which in a way also form to be the barometer to consider a practice consistent or inconsistent with the Part III, i.e. the fundamental rights of the constitution.

Fundamentally to which the conflicts in exchange of the intellectual osmosis the cleavage of opinion stand hesitant, whether constitutionalist or the conservativeness for their voices rests in defeat of the other. On that it is in course of debates equality in curtailment of the customary discriminatory practices bangled, and taken the new vistas of equality to unfurl at highness. Religious temples where for the times in taste of customs women were forbidden from entering, Supreme Court on intervention pronounce such practice as invalid and discriminatory in nature.[18]

Similarly for the women in Muslims community who over time discriminated on pronouncement of talaq, talaq-e-biddat, three times pronouncement of which by the husband caused the wedlock to terminate, and in consequence the wife to which stand destitute, the Supreme Court held such practice as discriminatory and violation of fundamental rights of the women under Part III of the constitution.[19] The observation in the case was in nature found of sheer significance where of the view taken by the Supreme Court of India held that a practice continued for long cannot on that ground attain validity if such practice causes violation of human rights.

Jurisprudential Nexus

Contradiction in distinction between custom and law is of nature draws much resemblance, the chequering fiction between the natural and the positive law. Natural law is of the "insights", given in adherence of the invisible power within every individual a sense of justice, of the times in examination of the practices which they will determine the goodness of society. Plato of the saying crafts that Almighty to everyone given a sense of justice and an ethical reverence in practice of which they would form the permanent union of mutual preservation[20]. Each individual of their individual capabilities the role in nature being given.

On that observation if caste system[21] of India or of the rule inheritance for the women be considered both of Africa and India, what would then be the analysis. It would simply then for them conditioned to be of like such, because they are either female in form or in caste lower than the others, by birth they are inferior to the others. The seed of discrimination is by then own to pursue. Aristotle and the follower Stoic, man for whom the creature of God in one part and in other through reasons they are being embodied.

The course of reasons therefore constitutes to be law of nature, which of a kind is a moral duty.[22] The understanding to which, the first part the man is a creature of God is supervising the reasons which govern them to act. On that the practice of "Sati", be considered in drag of the significance of Goddess Parvati who performed Sati, of being on the pyre of her burning demised husband.

In connection to which the mortals on the land till the time abolished the practiced continued to force women for performing sati. Custom in nature to practice jabbed directly with the divine command, which of the most devoid of reasons than of command only.

Triple Talaq, constitutionally which held to be void is in nature directly sanctioned by the holy "Quran", in practice which stand devoid of reasons, leaving for the wives a life of destitute. Positive law of the time when industrial revolution unveiled in the 19th Century across United Kingdom dropped into. Jeremy Bentham, who of the stand in cut of all the superfluous ties, contended law as a command of the sovereign, which in later John Austin his disciple much in nature influenced to improvise the statement in the name of positivism.[23]

Ethical duties and moralities to which in law said of no significance, the concept of utilitarianism born into, maximum happiness for the maximum number of people. Modern practice of that therefore crafts into, which constitutions of every civilized country on that emboldened. In rule of Magna Carta, in drafts where claimed, the inherent rights for the people substantiate into, and to which King is also equivalent, equal spirit of law leaned over the customary jargons.

Second world war, in pursuance to which in the year 198 the Universal Declaration Human Rights when drawn into, the rights then being proclaimed called to be universal, the rights for the human world being recognized called inherent, and in devoid of, life is said to be lifeless. [24]

Conclusion
"Man is by nature a social animal", what said by Aristotle was of time written off with the Alexander the Great, said of the fact that, "Man is by nature an individual", spirit of brotherhood therefore the instinct that plays infinitely to cater welfare of the country.[25] Immanuel Kant therefore, the champion of liberalism unravelled up with the concept of "right", who said on the vision that everything which is not right shall stoop down before, and to evaluate what is right, the concept of utilitarianism is an inevitable fabrics to embrace with.

Custom to that in conflicts of law be measured, where if it can pass through the barometer of being right and good, it would then in sanctification of the hedonistic calculus shall be enforced and practiced in perpetuity, otherwise in contrary for such discriminatory practices the fate of burial is inevitable.

End-Notes:
  1. V.D. Mahajan's Jurisprudence and Legal Theory, Fifth Edition, Eastern Book Company, Pg, 226
  2. The Conversation; How 'bride price' reinforces negative stereotypes: a Ghanaian case study; by Stephen Baffour Adjei 28th July 2019; https://theconversation.com/how-bride-price-reinforces-negative-stereotypes-a-ghanaian-case-study-120337 [last visited 10th August 2021]
  3. SCIELO South Africa Potchefstroom Electronic Law Journal (PELJ) ISSN 1727-3781, PER vol.15 n.1 Potchefstroom Jan. 2012 Culture, tradition, custom, law and gender equality by MJ Maluleke [last visited 10th of August 2021]
  4. Charter of the British South Africa Company (Oct. 29, 1889), in Select Constitutional Documents Illustrating South African History, 1795-1910, at 559(George von Welfing Eybers ed., 1918).
  5. Constitution, art 23 (1)(b) (Zim)2009https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/492/95616/F422449028/ZWE492%20as%20amended%20to%2013.2.2009.pdf, Constitution, art 56 (Zim.) 2013, https://www.constituteproject.org/constitution/Zimbabwe_2013.pdf
  6. The constitution of the Republic of South Africa,1996, Art211 https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf
  7. 2008 (2) SA 66 (CC) 43 (S.Africa)
  8. 2003 (5) SA 460 (CC) 51 (S.Africa)
  9. Pumza Fihlani, "The four sisters who took on Botswana's chiefs � and won", BBC News, 23 October 2013. Available from www.bbc.com/news/world-africa-24623692 [last visited 10th of August, 2021]
  10. (2001) AHRLR 236 2 (reprinting [1990] LRC (Const) 757
  11. Alexkor Ltd. v. Richtersveld Cmty., 2003 (5) SA 460 (CC) n.51 (S. Afr.)
  12. (1992) AHRLR 99, 49 (Bots.)
  13. ThoughtCo. Introduction to the Custom of Sati, By Kallie Szczepanski, 31st July, 2019, https://www.thoughtco.com/what-is-sati-195389 [last visited; 11.08.2021]
  14. How the taboo on Hindu widow remarriage led to liberal abortion norms in colonial India, by Mitra Sharafi, Aug 10, 2020 [last visited 11.08.2021]
  15. Hastings Women's Law Journal, Volume 19 Number 1,Winter 2008, 1-1-2008, The Evolution of the Women Rights in Inheritance, Kristine S. Knaplund
  16. Citizen Matters, Rights to ancestral property, by Laasya Shekhar, November 18, 2020, https://citizenmatters.in/interview-on-womens-legal-share-in-property-21580 [ last visited 11.08.2021]
  17. Financial Express, Hindu Marriage: Marriage without taking "saath pheras" https://www.financialexpress.com/lifestyle/hindu-marriage-act-married-without-taking-saath-pheras-find-out-if-your-marriage-is-legally-valid/1579979 [last visited, 11.08.2021]
  18. Indian Young Lawyers Assn. V. State of Kerala, 2018 SCC Online SC 1690
  19. Shayara Bano v. Union of India, (2017) 9 SCC 1
  20. V.D.Mahajan's Jurisprudence and Legal Theory, Fifth Edition, Eastern Book Company, Pg 597
  21. What is India's Caste System? BBC NEWS, 19th June 2019 https://www.bbc.com/news/world-asia-india-35650616, [last visited 11.08.2021]
  22. Id 20
  23. V.D. Mahajan's Jurisprudence and Legal Theory, Fifth Edition, Eastern Book Company, pg 443
  24. United Nations, Universal Declaration of Human Rights, https://www.un.org/en/about-us/universal-declaration-of-human-rights, [ last visited 11.08.2021]
  25. WW Tan, Hellenistic Civilisation (1955:79) quoted in Sabine and Thorson, 1973: 141

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