PAPER – I
UNIT – II
I) Q. What are the factors responsible for disobedience of law? Give your suggestions in
this regard.
In every society, law is an instrument to administer the chaotic atmosphere. Some
legislation are based upon customary approach and some are upon analytical approach. In spite
of the fact that legislations are being passed by the parliament, there is disobedience of law in
some concerned quarters. The every first problem is created by custom in matrimonial disputes
and in succession. Some tribes denied to obey the codified law by pleading that they are bound
by customs.
FACTORS RESPONSIBLE FOR DISOBEDIENCE OF LAW
1. Laws, which are inconsistent to customs:- No doubt, all legislations are for
betterment of society and is based on customs. In fact, sometimes during the
enactment of legislations some customs are ignored in totality later on these
customs create problems and lead the society towards disobedience of particular
law.
2. Customs vis-à-vis personal Law:- It is a settled position that –
a) When custom is alleged and proved, then the custom is the governing rule.
b) When custom is alleged, is not proved, or when no custom is alleged, the personal law is
the governing rule.
In Ujagar Singh vs. Jeo, (1960)SCJ 16, the Supreme Court observed that when a party
who relies on custom fails to prove it, there the rule of decision must be the personal law of
parties. This is an established preposition of law that when no custom on either side is
established, the personal law of the parties applies.
3. Custom: The first rule of decision:- In India, their personal laws governs each
community. Hindu Law has all along recognized that a valid custom overrides the
sacred law.
4. Age: - Under customary Hindu and Muslim laws, marriage of minors has been valid.
The Child Marriage Restraint(Amendment) Act, prescribes marriage age of 21 years
for male and 18 years for female. In some tribes there is disobedience of this law,
because customs are still valid despite having legal provisions.
5. Ceremonies of marriage: - Marriage under customary law may be solemnized in
three modes – whichever mode is recognized by the custom of the tribe or case.
Firstly, the religious sacramental ceremonies are required to be performed on the
higher classes of Hindus when they perform a regular or normal marriage.
Secondly, some formal and secular ceremonies are required to be performed on
some tribes for the performance of a normal and regular marriage –included the
Muslim tribes. Thirdly, no ceremonies are required to be performed in some tribes,
mere intention to live together as husband and wife followed by cohabitation is
enough. Such marriages are usual in the lower cases. This is particularly true when
an informal marriage like the ‘karewa’or the ‘Chadar-andazi’ is entered into. In such
marriages even among the high case Hindus, no formal ceremonies, religious or
otherwise are required.
6. Customs prevails over Law:- The child marriage is still prevailing among Hindus and
Muslims despite the enactment of the Child Marriage(Restraint) Act. Similarly,
despite the enactment of Dowry Prohibition Act, menace of dowry is still prevailing.
Reasons for this is the customs of the Hindus and Muslims. Execution of laws are
impossible where customs are in practice.
7. Marriages:- Strictly, speaking there are no forms of marriage under customary law
as we talk of them under Hindu law. Different tribes follows formalities for the
performance of their marriages. There are two forms of marriage in which no
formalities are required, i.e., ‘Karewa marriage’ and ‘ Chader-andazi marriage’.
Karewa marriage’ is essentially a marriage by mutual consent without the performance
of any ceremonies whatsoever. Thus, among Jat tribes when a man takes the wife of his
deceased brother into his house without any marriage ceremony, and she bears him
children, such children are accepted as legitimate and all respects. In Kaur v. Sawan Singh, a
marriage of a Jat with a Kori (low case tribe) woman in Karewa form was held valid. Among
the low caste Hindus the Karewa marriage is very common.
‘Chader-andazi marriage’ in this form the ceremonial has been reduced to the very
minimum and is one of the recognized forms of marriage. A ‘karewa’ among the jats usually
takes place in the ‘chader-andazi’ form which means throwing of sheet over the couple
about to be married.
8. Dowry Prohibition Act, 1961: Customs plays a vital role and dowry is termed as
Daan to Kanya. Provisions of Dowry Prohibition Act, 1961 are not applicable and
even not accepted particularly in rural areas when both are agreed on giving and
taking dowry. It is not feasible to execute law because by execution of legal
provisions harmony between husband and wife may be disturbed. So in case of
dowry still customs are prevailing and execution is not possible without the
cooperation of people.
9. Public opinion disregards: POTA 2002:- POTA was enacted with the object to fight
against terrorism. There is repulsion among society and some quarters are not
convinced with the POTA legislation because plenary powers are given to authorities
so that they can violate fundamental rights easily. No doubt when legislation is
passed by parliament it is supreme but it is equally important to note that whether
public opinion is for legislation or not? In circumstances, when there is lack of
public opinion executive fails some time to execute law properly. So here it may be
said that for legislation public opinion is necessary.
10. Armed Forces Act Manipur: - This Act was passed with the object to administer the
Manipur State properly because Manipur is disturbed State due to terrorism. 90%
population opposed it. Despite having opposition, Central Govt. has rigid approach.
Due to this dispute there was chaos in the State.
11. Haryana Excise Act: - When Bansi Lal Government came to power in Haryana they
imposed Excise Act for prohibition on selling and consumption of liquor. Maximum
public consumes liquor in Haryana and there was huge loss to the State exchequer.
When public is accustomed to liquor, it is not feasible to implement the law on
prohibition of selling and consumption of liquor.
12. Procedural law restricts execution of law:- Since ancient times concept of privacy is
important. In modern times, personal liberty embraced privacy in every aspect of
life. In an important incident CISF security male staff stripped an American woman
at IGI Airport. She alleged violation of privacy of a woman. But at the same time, it
is equally important to maintain security of State and seizure is primary duty of
security staff. Procedural law was enacted with the object that concept like privacy
and personal liberty should not be violated at any cost but these concepts are
different to statutory law and sometimes instead of harmony there is repugnance
between both.
13. Religion and Law:- The Supreme Court has observed that there should be a Uniform
Civil Code to govern different religions. In Shah Bano case, the Supreme Court
interpreted Section 125 Cr.PC in favour of Muslim woman but due to strict
intervention of Muslim leaders the judgment was nullified by Muslim Women
Protection Act, 1986. This shows that religion is supreme not the law.
14. Article 21 prevails over legislations:- Constitution of India is the grundnorm, the
legislation which is against the grundnorm is not constitutional. In Maneka Gandhi
vs. UOI, the Supreme Court observed that law should be fair, just and justified.
After this decision, the interpretation of ‘process established by law’ had been
interpreted on the footing of due process of law of American constitution. The
authorities cannot implement unfair and arbitrary laws.
15. Lack of publicity:- When new legislation comes into force there is lack of publicity
of that particular law which creates problems. The reason of ignorance of law leads
to disobedience of law.
Conclusion:- Framing of legislation is not difficult but the execution of law is difficult. For
execution of laws the major problem is of disobedience of law by the concerned people. In
country like India, customs are prevalent in comparison to law particularly Family Law. So,
somewhere customs are factors for disobedience of law and somewhere imposed
legislations by Government are responsible for disobedience of law.
UNIT – II
I) Q. What are the factors responsible for disobedience of law? Give your suggestions in
this regard.
In every society, law is an instrument to administer the chaotic atmosphere. Some
legislation are based upon customary approach and some are upon analytical approach. In spite
of the fact that legislations are being passed by the parliament, there is disobedience of law in
some concerned quarters. The every first problem is created by custom in matrimonial disputes
and in succession. Some tribes denied to obey the codified law by pleading that they are bound
by customs.
FACTORS RESPONSIBLE FOR DISOBEDIENCE OF LAW
1. Laws, which are inconsistent to customs:- No doubt, all legislations are for
betterment of society and is based on customs. In fact, sometimes during the
enactment of legislations some customs are ignored in totality later on these
customs create problems and lead the society towards disobedience of particular
law.
2. Customs vis-à-vis personal Law:- It is a settled position that –
a) When custom is alleged and proved, then the custom is the governing rule.
b) When custom is alleged, is not proved, or when no custom is alleged, the personal law is
the governing rule.
In Ujagar Singh vs. Jeo, (1960)SCJ 16, the Supreme Court observed that when a party
who relies on custom fails to prove it, there the rule of decision must be the personal law of
parties. This is an established preposition of law that when no custom on either side is
established, the personal law of the parties applies.
3. Custom: The first rule of decision:- In India, their personal laws governs each
community. Hindu Law has all along recognized that a valid custom overrides the
sacred law.
4. Age: - Under customary Hindu and Muslim laws, marriage of minors has been valid.
The Child Marriage Restraint(Amendment) Act, prescribes marriage age of 21 years
for male and 18 years for female. In some tribes there is disobedience of this law,
because customs are still valid despite having legal provisions.
5. Ceremonies of marriage: - Marriage under customary law may be solemnized in
three modes – whichever mode is recognized by the custom of the tribe or case.
Firstly, the religious sacramental ceremonies are required to be performed on the
higher classes of Hindus when they perform a regular or normal marriage.
Secondly, some formal and secular ceremonies are required to be performed on
some tribes for the performance of a normal and regular marriage –included the
Muslim tribes. Thirdly, no ceremonies are required to be performed in some tribes,
mere intention to live together as husband and wife followed by cohabitation is
enough. Such marriages are usual in the lower cases. This is particularly true when
an informal marriage like the ‘karewa’or the ‘Chadar-andazi’ is entered into. In such
marriages even among the high case Hindus, no formal ceremonies, religious or
otherwise are required.
6. Customs prevails over Law:- The child marriage is still prevailing among Hindus and
Muslims despite the enactment of the Child Marriage(Restraint) Act. Similarly,
despite the enactment of Dowry Prohibition Act, menace of dowry is still prevailing.
Reasons for this is the customs of the Hindus and Muslims. Execution of laws are
impossible where customs are in practice.
7. Marriages:- Strictly, speaking there are no forms of marriage under customary law
as we talk of them under Hindu law. Different tribes follows formalities for the
performance of their marriages. There are two forms of marriage in which no
formalities are required, i.e., ‘Karewa marriage’ and ‘ Chader-andazi marriage’.
Karewa marriage’ is essentially a marriage by mutual consent without the performance
of any ceremonies whatsoever. Thus, among Jat tribes when a man takes the wife of his
deceased brother into his house without any marriage ceremony, and she bears him
children, such children are accepted as legitimate and all respects. In Kaur v. Sawan Singh, a
marriage of a Jat with a Kori (low case tribe) woman in Karewa form was held valid. Among
the low caste Hindus the Karewa marriage is very common.
‘Chader-andazi marriage’ in this form the ceremonial has been reduced to the very
minimum and is one of the recognized forms of marriage. A ‘karewa’ among the jats usually
takes place in the ‘chader-andazi’ form which means throwing of sheet over the couple
about to be married.
8. Dowry Prohibition Act, 1961: Customs plays a vital role and dowry is termed as
Daan to Kanya. Provisions of Dowry Prohibition Act, 1961 are not applicable and
even not accepted particularly in rural areas when both are agreed on giving and
taking dowry. It is not feasible to execute law because by execution of legal
provisions harmony between husband and wife may be disturbed. So in case of
dowry still customs are prevailing and execution is not possible without the
cooperation of people.
9. Public opinion disregards: POTA 2002:- POTA was enacted with the object to fight
against terrorism. There is repulsion among society and some quarters are not
convinced with the POTA legislation because plenary powers are given to authorities
so that they can violate fundamental rights easily. No doubt when legislation is
passed by parliament it is supreme but it is equally important to note that whether
public opinion is for legislation or not? In circumstances, when there is lack of
public opinion executive fails some time to execute law properly. So here it may be
said that for legislation public opinion is necessary.
10. Armed Forces Act Manipur: - This Act was passed with the object to administer the
Manipur State properly because Manipur is disturbed State due to terrorism. 90%
population opposed it. Despite having opposition, Central Govt. has rigid approach.
Due to this dispute there was chaos in the State.
11. Haryana Excise Act: - When Bansi Lal Government came to power in Haryana they
imposed Excise Act for prohibition on selling and consumption of liquor. Maximum
public consumes liquor in Haryana and there was huge loss to the State exchequer.
When public is accustomed to liquor, it is not feasible to implement the law on
prohibition of selling and consumption of liquor.
12. Procedural law restricts execution of law:- Since ancient times concept of privacy is
important. In modern times, personal liberty embraced privacy in every aspect of
life. In an important incident CISF security male staff stripped an American woman
at IGI Airport. She alleged violation of privacy of a woman. But at the same time, it
is equally important to maintain security of State and seizure is primary duty of
security staff. Procedural law was enacted with the object that concept like privacy
and personal liberty should not be violated at any cost but these concepts are
different to statutory law and sometimes instead of harmony there is repugnance
between both.
13. Religion and Law:- The Supreme Court has observed that there should be a Uniform
Civil Code to govern different religions. In Shah Bano case, the Supreme Court
interpreted Section 125 Cr.PC in favour of Muslim woman but due to strict
intervention of Muslim leaders the judgment was nullified by Muslim Women
Protection Act, 1986. This shows that religion is supreme not the law.
14. Article 21 prevails over legislations:- Constitution of India is the grundnorm, the
legislation which is against the grundnorm is not constitutional. In Maneka Gandhi
vs. UOI, the Supreme Court observed that law should be fair, just and justified.
After this decision, the interpretation of ‘process established by law’ had been
interpreted on the footing of due process of law of American constitution. The
authorities cannot implement unfair and arbitrary laws.
15. Lack of publicity:- When new legislation comes into force there is lack of publicity
of that particular law which creates problems. The reason of ignorance of law leads
to disobedience of law.
Conclusion:- Framing of legislation is not difficult but the execution of law is difficult. For
execution of laws the major problem is of disobedience of law by the concerned people. In
country like India, customs are prevalent in comparison to law particularly Family Law. So,
somewhere customs are factors for disobedience of law and somewhere imposed
legislations by Government are responsible for disobedience of law.
