When Custom Based Hindu Marraige Ceremonies Makes it Valid and How They Are Proved
- Content Desk
- Apr 10
- 16 min read
Table of Content
Somewhere in coastal Karnataka, a Lingayat couple stands before their community's priest and performs the rites that their community has observed for generations — rites that bear no resemblance to the Brahmanical forms described in the classical texts.
In South India, a cross-cousin marriage is celebrated with ceremonies as old as the communities themselves, though the family trees of the parties would render the union void under any other reading of the law. In North India, a Jat Sikh wedding follows a form that none of the Grihyasutras ever anticipated.
Each of these marriages is fully valid under the Hindu Marriage Act, 1955. The reason is Section 7, which is, in effect, the statute's acknowledgment that custom-based marriage ceremonies govern an enormous swathe of Hindu India —
and that the law exists to enable and protect this diversity, not to impose a single Brahmanical template across a civilisation of infinite variety.
But that acceptance comes with conditions: the custom must be legally cognisable, the ceremony must be genuinely the community's own, and when challenged in court, both must be proved by adequate evidence.
Section 7 HMA: The Statutory Framework
The "Either Party" Choice
Section 7(1) of the Hindu Marriage Act, 1955 provides that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto (Rampiayar v Deva Rama, AIR 1923 Rang 202). The legislature's choice of the word "either" is not accidental — it is a deliberate grant of flexibility.
It is not necessary that the ceremonies should always be as per the customs and ceremonies of the bridegroom (Nagorao B More v Premalabai, AIR 2009 (NOC) 1634 (Bom)). The bride's community's rites may govern, or the bridegroom's, depending on what the parties choose — provided the chosen custom is a valid, legally cognisable one.
Section 7(2) adds the saptapadi qualification: where the applicable customary rites include saptapadi — the taking of seven steps jointly before the sacred fire — the marriage becomes complete and binding when the seventh step is taken (Venkata v Tangutaru, AIR 1968 AP 107).
But this consequence attaches only where saptapadi is part of the applicable custom. For communities whose rites do not include saptapadi, the marriage is complete according to whatever ceremony their custom regards as constitutive. The Act does not impose uniformity; it tracks the community.
The Act also saves all customary rites and ceremonies existing at its commencement, expressly providing that nothing in the Act shall be deemed to affect any right recognised by custom to obtain the dissolution of a Hindu marriage, whether solemnised before or after the Act's commencement.
What "Solemnised" Demands
The word "solemnised" is not an administrative word in the Act's vocabulary. The Hon'ble Supreme Court, in Bhaurao Shankar Lokhande v State of Maharashtra (AIR 1965 SC 1584), held unambiguously that it means to celebrate marriage with proper ceremonies and due form.
The Orissa High Court in Margaret Palai v Savitri Palai (AIR 2010 Ori 45) carried this further: solemnisation means to celebrate marriage with proper ceremonies with the intention that the parties should be considered to be married.
Both elements matter: the proper ceremony and the intention. A gathering, a garland exchange, a celebratory meal — none of these is "solemnisation" unless the ceremonies that the applicable custom regards as proper and constitutive of marriage are performed, and are performed with the intention that the parties emerge from the ceremony as husband and wife.
Custom in Hindu Law: Its Sources and Standing
Custom as a Source of Law
The authority of custom in Hindu law predates British codification by centuries. The Privy Council, in its celebrated dictum in Collector of Madura v Mootoo Ramalinga ((1868) 12 Moo IA 397), declared that under the Hindu system of law, clear proof of usage will outweigh the written text of the law. This was not a colonial innovation — it reflected the principle embedded in the Dharmashastra tradition itself, which classified custom (achara) as among the highest sources of dharma.
The modern Hindu law sources confirm this standing. According to Mayne, the sources of Hindu law are the smritis or dharmasastras, the commentaries and digests, and custom. According to Manu and Yajnavalkya, the sources include the sruti, the smriti, and approved usages. Custom, in other words, is not a peripheral supplement to Hindu law — it is one of its three original pillars.
The courts from 1772 onwards were directed to apply Hindu customs in questions of personal law, and this recognition has carried forward through the Hindu Marriage Act, 1955.
Four Classes of Custom Under Hindu Law
The case law and texts recognise four classes of custom (Gokalchand v Parvin, AIR 1952 SC 231):
Caste customs — the customs of a particular caste or sub-caste
Tribal customs — the customs of a tribe, especially relevant to scheduled tribe communities
Territorial or local customs — customs prevalent in a particular region or locality
Family customs — customs of a particular family, which may override even caste-wide rules
Each of these categories may, in principle, govern the ceremonies required for a valid marriage in a given community. A family custom permitting a particular form of ceremony that the wider caste does not recognise may be invoked, provided it satisfies the tests of validity.
The Statutory Definition Under the Hindu Marriage Act 1955
The Hindu Marriage Act, 1955 defines custom and usage as any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law in any local area, tribe, community, group or family, if it is certain and not unreasonable or opposed to public policy. This statutory definition captures the essence of what the common law test for custom had always required, and sets the floor below which no usage can claim the status of custom under the Act.
The Legal Test for a Valid Custom: Four Essential Attributes
The courts have consistently applied a four-attribute test when evaluating whether a claimed custom is legally cognisable. A custom must be ancient, certain, continuous, and reasonable. Each attribute is a separate requirement; failure on any one defeats the custom.
Antiquity
A custom must be ancient (Shib Narain Mookerjee v Bhutnath, (1918) ILR 45 Cal 475). It must have been observed for a long time — long enough that it can be said to have "obtained the force of law" in the community. The precise period required is not fixed, but the courts look for evidence of observance over generations, not merely years.
Certainty
The custom must be certain — clear in its content, known to the community, and consistent in its requirements. Uncertainty about what the custom actually demands, or about which members of the community it binds, defeats the claim.
The Andhra Pradesh High Court in Venkata S Chetty v Tanguturu Shastree (AIR 1968 AP 107) articulated the certainty requirement in its most focused form: the essence of custom lies in its definiteness and recognition by the community with certainty and without any variation. A custom whose requirements shift from one wedding to the next, or from one family to the next, is not a custom in the legal sense — it is a preference.
Continuity
Continuity is an essential element for the validity of a custom (Shib Narain Mookerjee v Bhutnath, (1918) ILR 45 Cal 475). The onus of proving discontinuance lies on the person who sets it up (Shahbjit v Indrajit, (1905) ILR 27 All 203).
Where a custom has been continuously followed without interruption, the burden on the party seeking to deny it is heavy. Where there is evidence of discontinuance — either deliberate or through the passage of the community to different practices — the custom loses its legal force.
Reasonableness and Non-Opposition to Public Policy
A custom which is immoral or opposed to public policy, or opposed to any enactment of the legislature, will not be recognised or enforced (Vannikone v Nannichi, (1928) ILR 51 Mad 1 (FB)). This limitation is not a minor qualification — it is the constitutional and moral floor below which no custom can survive.
The courts have applied it to strike down customs that would, for instance, authorise a woman to abandon her husband and remarry without his consent (Narayan Bharthi v Laving Bharthi, (1878) ILR 2 Bom 140), characterising such customs as void for immorality.
When Alternative Ceremonies Are Valid: The Case Law
Suyamartyathai and Seerthirutha Marriages
The Madras High Court, in Annathai v Murugaiah (AIR 2000 Mad 356), held that where a marriage is solemnised in accordance with the ceremonies laid down under the Hindu Marriage Act, 1955 in the form of Suyamartyathai and Seerthirutha marriages, such solemnisation is valid under the Act.
These forms — prevalent among particular communities in Tamil Nadu — do not follow the Brahmanical template of kanyadan, panigrahan, homa and saptapadi. They follow their own community's rites. The Act validates them, and so did the Hon'ble High Court.
The Anand Ceremony Among Sikhs
The Anand Marriage Act, 1909 — specifically enacted to remove doubts about the validity of the marriage ceremony common among Sikhs — provides that all marriages duly solemnised according to the Anand ceremony customary among the Sikhs are valid.
The Hindu Marriage Act, 1955 preserves this validation. The Anand ceremony, performed with the reading of the Anand Sahib in the presence of the Granth Sahib, is a complete and valid marriage form under Indian law — not because it approximates any Brahmanical ceremony, but because it is the community's own, ancient, certain, and continuous rite.
Critically, the Anand Marriage Act does not apply to marriages between persons not professing the Sikh religion, nor does it validate any marriage within prohibited degrees according to Sikh customary law. The ceremony's validity is community-specific.
The Scheduled Caste Community: Custom Displacing Brahmanical Forms
The Bombay High Court's decision in Chandrabagabai Ganpati Karwar v Sambhaji Narhari Karwar (AIR 2007 Bom 201) provides one of the clearest modern illustrations of how Section 7 operates for non-Brahmanical communities.
The wife in that case belonged to a scheduled caste community whose own prevailing custom included the observance of saptapadi and homa. The court held that the marriage could not be said to be invalid merely because of the absence of saptapadi and homa — the governing question was not whether those ceremonies had been performed in the abstract, but whether the custom of the wife's community required them, and whether that custom had been followed.
The court's reasoning affirms the "either party" principle with precision: where the wife's community's custom is the applicable standard, validity must be tested against that standard, not against the ceremonies of the bridegroom's community or the classical four.
The Karewa Form: When Custom Requirements Go Unmet
The Karewa form of marriage — prevalent in parts of North India, particularly among certain communities where a widow or divorcee marries the brother or other male relative of her deceased or divorced husband — carries its own essential ceremonies.
Where the essential ceremonies to complete the Karewa form of marriage are not observed, the purported Karewa marriage cannot constitute a valid marriage (Bandan Thakur v State of Bengal, AIR 2009 (NOC) 2637 (Cal)). The custom is valid and recognised; but the custom's own requirements must be met. Invoking the name of the ceremony is not enough — its essential elements must be performed.
The Exchange of Garlands: Never Enough
Among the clearest statements in the case law is the rule that a mere exchange of garlands in the presence of a deity without any ritual does not constitute a marriage (Bandan Thakur v State of Bengal, AIR 2009 (NOC) 2637 (Cal)).
No custom recognised by the courts treats an exchange of garlands as a complete marriage ceremony. This rule is a useful reminder that the existence of some element of ceremony is not sufficient — the ceremony must be the one the applicable custom regards as constitutive of marriage, and it must be performed in the form the custom prescribes.
Custom Overriding Prohibited Degrees: A Separate Doctrine
Section 7 is not the only provision of the Hindu Marriage Act, 1955 where custom operates. Section 5(iv) and (v) also preserve custom — in this case, to permit marriages within the degrees of prohibited relationship or between sapindas, where the custom or usage governing the parties allows it. This is a significant and distinct operation of custom, which extends well beyond the question of ceremonies.
Cross-Cousin Marriages in South India
Under the Dayabhaga law, a maternal uncle comes within the sapinda relationship, making a marriage between a maternal uncle and niece ordinarily impermissible. However, the daughter of a maternal uncle, under the custom prevalent among some communities in South India, may validly marry the nephew (Venkata v Subhadra, 7 Mad 548 at 547).
Similarly, a marriage of a man with his sister's daughter, though ordinarily void, is permissible where there is a custom to that effect in the community to which one of them belongs.
The cross-cousin marriage custom in South India is one of the oldest and best-attested customs in the country. Courts have consistently given it legal effect where the party relying on it can prove that it governs their community.
The Aroras of Punjab
Among the Aroras of Punjab, there is a custom which permits marriage between the children of a brother and a sister, or the children of two sisters. Such a marriage, which falls within the degrees of prohibited relationship under Section 5(iv), is saved by the custom exception.
The Punjab and Haryana High Court, in Shakuntala v Amar (AIR 1982 Punj 221), upheld the validity of such a marriage and held that children born of such marriages between Aroras of Punjab are legitimate children.
The Test of Proof for Such Customs
The party who seeks to rely on a custom permitting marriage within prohibited degrees or between sapindas must prove its reasonableness, antiquity, continuity, and certainty (Thimakku v Bandhu, AIR 1977 Kant 115).
The burden is on the party setting up the custom, not on the party disputing it. Only two instances after 1955 are not sufficient to prove the existence of a custom (K Kamakshi v K Mani, (1970) 2 Mad LJ 477). The custom must be established by evidence going back in time, showing consistent observance by the community over generations.
The Immutability Principle: Custom Cannot Be Altered at Will
One of the most important principles that emerges from Venkata S Chetty v Tanguturu Shastree (AIR 1968 AP 107) is that it is not left to the will of any caste or community to alter the customary rites and ceremonies, because the essence of custom lies in its definiteness and recognition by the community with certainty and without any variation.
This principle operates in two directions.
First, it prevents the parties from inventing a ceremony and calling it their custom. Custom is not a menu from which parties may select whatever combination of rites suits them on the day. It is a fixed set of practices that the community has followed consistently over time.
If the community requires saptapadi, the parties must perform saptapadi — they may not substitute a shorter or different ceremony and invoke the name of the custom.
Second, it prevents gradual erosion of a custom's requirements through informal variation. Even where a community begins to observe a ceremony in a slightly different form over time, that variation does not immediately create a new custom.
The original form, if it can be proved, remains the legally applicable standard until there is consistent, long-term observance of the new form — enough to establish a new or modified custom on its own terms.
Proving Custom in Court: The Evidentiary Framework
Who Bears the Burden?
Where a party seeks to establish the validity of a marriage based on a custom — whether a custom permitting an alternative ceremony or a custom permitting a marriage within otherwise prohibited degrees — the burden lies on the party who sets up the custom. This is a well-established principle of evidence in family law. The party challenging the marriage need not disprove the custom; the party relying on it must prove it.
What Evidence Is Required?
The courts require evidence of all four elements: antiquity, certainty, continuity, and reasonableness. In practice, this means:
Documentary evidence: historical accounts, gazetteers, community records, sociological surveys, or earlier court decisions recognising the custom
Oral evidence: testimony of elders, community leaders, or experts in the community's practices, establishing how the ceremony is performed and how long it has been so performed
Consistent past observance: evidence of marriages in the community performed in the same manner over generations
Absence of variation: evidence that the community has not changed the essential form of the ceremony
The courts look for genuine historical practice, not ad hoc assertion. A claim that "our family has always done it this way" with no supporting evidence beyond the interested testimony of family members is unlikely to satisfy the test.
The Presumption That Aids Proof
Once the factum of a marriage is established — that a ceremony of some description took place — the courts will presume that the necessary ceremonies applicable to the community were duly performed (ALVRST Veerappa Chettiar v S Michael, AIR 1963 SC 933).
This presumption assists a party who can prove that a wedding occurred but who cannot produce evidence of each individual act within the ceremony. The presumption carries the details; the evidence must carry the fact of solemnisation.
A strong presumption also arises where the parties have lived together as husband and wife for a long time. The law leans towards legitimacy and against bastardy, and a heavy burden lies on any person who challenges the legal origin of such a relationship (Badri Prasad v Deputy Director of Consolidation, AIR 1976 SC 1557).
What Is Not Enough
The case law is equally clear on what does not suffice. Only two instances after 1955 are not sufficient to prove the existence of a custom (K Kamakshi v K Mani, (1970) 2 Mad LJ 477). The custom must pre-exist the Act and must have been observed consistently across the community, not merely in isolated instances. Self-serving evidence from interested parties, uncorroborated by any historical or community evidence, will not discharge the burden.
The Scheduled Tribes: A Complete Exemption
The interaction of custom and the Hindu Marriage Act, 1955 takes its most absolute form in the case of the scheduled tribes. All four Hindu law Acts of 1955-56 protect the custom and usage of the scheduled tribes — as defined in the Constitution of India — by making all their provisions wholly inapplicable to those tribes (Chandra Mohan Majhi v Kaushalya Majhi, 1993 (2) DMC 214). For these communities, the Hindu Marriage Act does not govern at all; their marriages are regulated entirely by their own customary laws.
This complete exemption reflects a considered constitutional and legislative choice: that the scheduled tribes' customary laws — governing not just ceremonies but the entire institution of marriage, its conditions, its dissolution, and its consequences — are sui generis and are not to be absorbed into or modified by the codified personal laws applicable to the wider Hindu community.
Limits of Custom: What Custom Cannot Do
Section 7's deference to custom is not unlimited. Three absolute limits govern:
Custom cannot be immoral or opposed to public policy. A custom authorising a woman to abandon her husband and remarry without his consent is void for immorality (Narayan Bharthi v Laving Bharthi, (1878) ILR 2 Bom 140). Any custom whose operation would be oppressive, exploitative, or contrary to the fundamental rights of the parties is liable to be refused recognition.
Custom cannot override statutory conditions of validity. The "unless custom permits" exception in the Hindu Marriage Act, 1955 applies only to the prohibited degrees and sapinda conditions under Section 5(iv) and (v). Custom cannot save a bigamous marriage, cannot lower the age requirements, and cannot dispense with the requirement of a Hindu party.
Custom cannot be created unilaterally. No caste or community may simply declare a new ceremony to be its custom. Custom acquires legal force only through the test of time — antiquity, certainty, continuity, reasonableness. Anything short of that is not custom in the legal sense; it is preference.
Conclusion: Custom as Law, Not as Convenience
Section 7 of the Hindu Marriage Act, 1955 does not treat custom as a soft alternative to proper ceremony, available whenever parties find the classical forms inconvenient. It treats custom as law — as binding, as specific, and as demanding of proof as any statutory provision.
The ceremony that a community has practised for generations is valid precisely because it is ancient, certain, and continuous. Remove any of those attributes and the custom collapses as a legal ground for the marriage.
The practitioner advising on the validity of a marriage solemnised in an alternative ceremonial form must ask: what custom governed? Does that custom satisfy the four-fold test?
Was the ceremony performed in the form that the custom prescribes, without variation? And, if challenged in court, can that custom be proved by adequate evidence?
The diversity of Hindu marriage ceremony across the subcontinent is one of the most remarkable features of the Act's framework.
From the Anand ceremony of the Sikhs to the Suyamartyathai form of Tamil communities, from the Karewa form of North India to the cross-cousin marriages of the South — the law accommodates all of them. But accommodation requires validity. Custom-based marriages are valid when the custom is valid, and the custom is valid only when it can answer the law's four tests.
Frequently Asked Questions
Q: Under Section 7 of the Hindu Marriage Act 1955, whose customs govern the marriage ceremony?
Section 7(1) provides that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party to the marriage. It is not necessary that the ceremonies be those of the bridegroom.
The parties may choose the customs of the bride's community, as long as those customs satisfy the legal requirements of a valid custom — antiquity, certainty, continuity, and reasonableness.
Q: What makes a custom legally valid under the Hindu Marriage Act 1955?
The Hindu Marriage Act, 1955 defines custom and usage as any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law in any local area, tribe, community, group or family, if it is certain and not unreasonable or opposed to public policy.
The courts have identified four essential attributes a custom must satisfy: it must be ancient, certain, continuous, and reasonable. A custom that fails any one of these tests is not legally cognisable.
Q: Can custom permit a marriage between persons who would otherwise be within the degrees of prohibited relationship?
Yes, but within limits. Sections 5(iv) and 5(v) of the Hindu Marriage Act, 1955 permit a marriage within the degrees of prohibited relationship or between sapindas where the custom or usage governing each of the parties allows it.
The party relying on such a custom must prove its reasonableness, antiquity, continuity, and certainty — and only two instances after 1955 have been held insufficient to establish a custom (K Kamakshi v K Mani, (1970) 2 Mad LJ 477).
Q: Can parties invent a new ceremony and call it their custom?
No. The Andhra Pradesh High Court held in Venkata S Chetty v Tanguturu Shastree (AIR 1968 AP 107) that it is not left to the will of any caste or community to alter the customary rites and ceremonies, because the essence of custom lies in its definiteness and recognition by the community with certainty and without any variation. Custom must be proved by evidence of long and consistent observance by the community; it cannot be created ad hoc by the parties.
Q: Does the Hindu Marriage Act 1955 apply to scheduled tribes?
No. All four Hindu law Acts of 1955-56 protect the custom and usage of the scheduled tribes by making their provisions wholly inapplicable to those tribes. Scheduled tribe communities are governed entirely by their own customary laws, and the ceremonies, conditions, and consequences of marriage within those communities are regulated by those customary laws, not by the Hindu Marriage Act, 1955.
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