Sir Henry Maine and the Customary Laws of Punjab : A Study

Sir Henry Maine^[1], when he devised a hitherto movement of societies from status to contract, quoted that countries like India and China are locked in an unchanging world.  They are burdened and bound by a fixed legal condition with prevailing family dependency, where law has a very limited application as it is binding upon families but not upon individuals.^[2] Hence, he termed such societies as ‘static societies’, who display no desire to develop.

However, the assertion did not prove strong in the case of India, as the Indian society has always been progressive enough^[3] to recognise women’s rights and the right to property during the era of customary law, as well as during the codification. The transformation of rule of law in India had been witnessed from the era of codes to the Statutes.      

Maine further asserted that the colonial administrators had done one of the most arduous tasks for India, i.e., while framing the entire law of the land they had also prepared a “Record of Rights”, which described in detail all rights over the soil in the form they existed during annexation with the British Empire.^[4] These records were used to adjudicate disputes concerning ownership rights, etc. by the Settlement and Revenue officers acting as quasi-judicial agencies. Later this literature of Settlement and Revenue operations served as a reliable source for determining rights among Indian natives instead of recorded decisions of the Civil Courts. This major reliance on the British officers for maintaining the record of customs and rights of people had caused a major gap, and much was left unrecorded and unattained with respect to customs and usages. Even the laws administered by the Courts were mostly outsourced from Hindu law, especially the Laws of Manu, and for its interpretation they often solicited help from native lawyers. They were convinced that it had universal application as a supreme authority, having provisions for everything such as laws regulating the relation of classes, especially in the matter of marriage, laws of succession; tenure of property in joint families; proprietary rights and impact on them due to division of joint families and power of holding property in an individual capacity.

However, the situation was different in the State of Punjab where first priority is afforded to their local customs and usages, as it was seen that the natives of that region didn’t believe in Hindu law or Shariat law. While commenting upon the village communities of ancient India, Maine said that India is home to a massive population and is an aggregate of natural groups which used to be similar in structure to England and Europe in the dark ages.^[5] These naturally occurring and self-existing village communities were an institution to him.

However, the question which now arises is if these are institutions, then what does a community mean, and is there any difference between the two? The same could be deduced through Maine’s texts where he specifies that communities are mainly constituted by natural bonds among people instead of being an artificial structure i.e., created on some extraneous grounds, and natural bond could be of kinship in the tribal communities and territory in the village communities.^[6] The Indian village community had been described by Maine as bodies of men united together by the land they jointly occupy. However, his description of Indian Villages cannot be generalized for every class and community, and for every village, due to the practice of ryotwari in which common ownership didn’t exist.^[7]. Even in the State of Punjab, the village community followed agnatic succession in which all descendants of a proprietor form one united family and each male descendant, no matter how remote from that proprietor, had a right to succeed to the family property in virtue of his descent and recognized communal ownership of property, where property is jointly possessed and enjoyed by all the members of the community. However, this setup later transformed into the Punjab customary family structure with some features of the earlier community, especially non-alienability of land.      

Maine further stated that with the increase in population, there had been a shift in land holding patterns. Earlier, land used to be held by the community, whereas subsequently it was held by individual families. With this trend, another change came with respect to devolution of property on death of a proprietor in favour of other members of the family. In Punjab, the mode of inheritance was then determined on the basis of agnatic theory. It was a result of natural and gradual evolution of customary institutions that along with the ancestral property, the concept of separate property, also known as self-acquired property under Punjab customary law, came into being.^[8]

During the colonial era too, individuality was not given preference, as was stressed by Bentham’s utilitarianism. Instead, village, caste and tribe were used as the determining unit for the enforcement of policies. Once more, the village communities were made a unit of administration and caste was considered as the unit of knowledge covering the whole of India and all sections of Indian society. This resulted in the dilution of identity of Indian nationals and identifying people by caste instead. It had, without a doubt, established a direct link between the government and individuals, but now an individual’s right was characterised and determined by his status in society. The very circumstances that Maine warned against were again enforced in the Nation. Even if Maine’s preposition was to be accepted, it would not be held true for long. At the beginning, customs were used to regulate relationships among persons but with time, as society has changed, customs gave way to codified laws. Hence the stage of customary laws has always been temporary, giving way to the legislations with the changing time, either to give legal backing to that custom or to abolish it.  An example of this was a campaign started by Raja Ram Mohan Roy for the abolition of the ‘Sati System’ in which the wife of a dead man burned herself in his funeral pyre. Due to his active persuasion, Lord William Bentick, the then Governor General of British India passed the famous Regulation XVII in 1829 which declared Sati as illegal and punishable by Courts.

Further, the quest of the British administration to implement a formal and codified law in India had again caused great damage to the identity of people, their aboriginal Hindu law and customary law of the Nation. Bernard Cohn also mentioned it by stating that “while experimenting to establish a formal rule of law in India within the hundred years between Warren Hasting’s attempts in 1772 to the last quarter of the 19th century, publication of authoritative decisions in English had completely transformed Hindu law into a form of English case law.”^[9] The cases were even decided on the basis of English principles of Equity and often the principles of the Indian Justice system were ignored, which resulted in the formation of law outsourced from other Nations. This is evident from the presence of numerous precedents in commentaries or textbooks on Hindu Law, a trend common to all Anglo-Saxon derived legal systems. “What had started with Warren Hastings and Sir William Jones as a search for the ‘ancient Indian constitution’ ended up with what they had so much wanted to avoid with English law as the law of India”^[10] finds relevance once again.

The influence of Henry Maine is also seen behind the codification of customs, usages in Punjab to regulate the matters of inheritance, marriage, adoption and succession. It is reflected in the transformation of village administration under the influence of colonial Government in the light of old age traditions. With the enactment of Punjab Laws Act, 1872, customary law was given legal status inspired by the fact that the customary rules regulating civil life and property in Punjab were not emanated from the Hindu Codes or the Muslim Shariat law. It settled all uncertainties concerning application of laws. Further it was established that with respect to questions on inheritance, property rights of women, marriage, dower, adoption, guardianship, wills, legacies, gifts and partition, the concerned custom shall be applied with pre-requisite that it should be in consonance with justice, equity and good conscience, and has not been declared to be void by any competent authority. The Hindus and Mohammedan were usually governed by their respective Hindu and Mohammedan law.      

Thus, the province of Punjab can be stated as an exception where customs of people became the law of the province by a single statute. It was visible in judicial attitude too when Justice Chatterjee observed that the agnatic principle is a leading rule of Customary Law, particularly among exogamous tribes, but natural affection and the ties of blood should also have its effects in molding public opinion, on which Customary Law is founded. He stated that where the daughter is married in the village and is residing in her father’s house, and her husband or sons help him in cultivation and in managing his affairs, she is regarded in a different light. Natural affection inclines the owner to make her and her descendants his heirs, and this has given rise to the institution of ghar jawai or khanadamad, which is still a common feature of family life in succession in some districts of Punjab. Further other methods, such as the adoption of daughter’s son show the same feeling on the part of landowners who have only daughters and no male issue. In old times, when land was less valuable and men were merely cultivators of land, settlement of daughter’s sons in the village of their maternal grandfathers was quite common, and this is evidenced by the history of the foundation of many old villages.^[11]

CONCLUSION

The customs of a society reflect the popular consciousness of its people and laws should also reflect the same. During codification of laws in India, Sir Henry Maine too stressed upon the importance of customary laws of a State in its governance and development. However he also made sweeping generalizations of India being a static society without considering the progressive aspects of certain usages and customs that were prevalent in the State of Punjab. Later the British official recognized the strength of customary laws in keeping agricultural society of Punjab intact and therefore legislated that customs shall be the first rule of decision in cases of marriage, guardianship, succession and adoption. At the same time, codifying customs often led to regressive outcomes. 

[1]  Russell Kirk, The Thought Of Sir Henry Maine 15 The Review of Politics (1953),  https://www.jstor.org/stable/1404750 (Visited on January 10, 2023).

[2] SIR HENRY SUMNER MAINE, ANCIENT LAW:ITS CONNECTION WITH THE EARLY HISTORY OF SOCIETY AND ITS RELATION TO MODERN IDEAS (John Murray, 1890).

[3] Priya Darshini, Proprietary Rights of  Women In Ancient India 73 Proceedings of the Indian History Congress (2012) https://www.jstor.org/stable/44156199 (visited on January 10,2023).

[4] OM PARKASH AGGARWALA, SIR W.H RATTIGAN THE DIGEST OF CIVIL LAW FOR THE PUNJAB CHIEFLY BASED ON THE CUSTOMARY LAW (November 1, 2022, 11:00 A.M), https://revenue.punjab.gov.in/?q=digest-civil-law-punjab-chiefly-based-customary-law 

[5] Stephen Utz, Maine’s Ancient Law and Legal Theory 69 Faculty Articles and Papers (1984), https://opencommons.uconn.edu/law_papers/69 (Visited on 10/10/2022).

[6] Ananta K. Giri, Rule of law and Indian society: Colonial encounters, post-colonial experiments and beyond Madras Institute of Development (November 1, 2022), https://www.mids.ac.in/assets/doc/WP_165.pdf (last visited on November 1, 2022).

[7] Alan Diamond (ed.), The Victorian Achievement of Sir Henry Maine Cambridge University Press, 1991 (November 1, 2022), https://www.gmsr.com/wp-content/uploads/2016/06/Introduction.pdf 

[8] DR. PARAS DIWAN, CUSTOMARY LAW OF PUNJAB AND HARYANA (Publication Bureau, Panjab University, 2006).

[9] Id. pg. 2

[10] Supra note 6 at pg 2

[11] Daughter’s right of succession –‘agnatic theory’ not strictly followed in the Punjab, (October 30, 2022), http://revenue.punjab.gov.in/?q=node/633