FROM CUSTOM TO CODEX – HOW LAW RECONFIGURES SOCIAL CONSTRUCTS OF MARRIAGE AND KINSHIP

The research paper examines the changing nature of the interrelationship existing between customary social practices and codified legal frameworks in India as far as the institution of marriage and kinship are concerned. Its key government inquiries are: What has been the effect of conventional precepts on the contemporary Indian calculations of marriage and family as law? And how far do the statutory laws resonate with or clash with the customary law, more so in the rural and diversely socio-cultural environments?

It involves the analysis of a doctrine of law, additional to the case law research, review of the statutory interpretations, and sociological implications through the information provided in the census and ethnographic reports. The discussion on the translation of customary norms into enforceable legal rights within the constitutional and statutory regime of India is put in the light of the Latin legal maxim ubi jus ibi remedium which, being translated into English, states where there is a right, there is a remedy.

The Indian marriage was celebrated as a holy life-long bond. This is no longer the case however, as it is controlled today by a dual religion or personal laws (e.g., the Muslim Personal Law (Shariat) Application Act, 1937) and secular statutory laws (e.g., the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954). The paper focuses on the tension between norms not stated in the letter of the law and normative democratic rules, particularly when traditional caste, religion, gender, or sexuality discourses add to legal interpretation and enforcement difficulties. In the findings, it is seen that patriarchal ideas of kinship are gradually being reconstituted through courts, especially in such aspects of life as adoption, inheritance and guardianship. It can be summarized in the paper that a balanced legal practice, one that reconciles the traditional legitimacy with constitutional value, is of essence to the provision of justice, which is inclusive yet culturally echoed within a pluralistic society such as India.