JAMIA MILLIA ISLAMIA

FACULTY OF LAW,

NEW DELHI

JURISPRUDENCE

CUSTOMS AS A SOURCE OF LAW

SUBMITTED TO: SUBMITTED BY:

Prof. (Dr.) EQBAL HUSSAIN AMIT RAWLANI

PROFESSOR OF LAW V-SEM

ROLL NO. 11

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CH.1 Introduction

Custom is a habitual course of conduct observed uniformly and voluntarily by

the people. Custom occupies an important place in regulation of human conduct
in almost all the societies. In fact, it is one of the oldest sources of law-making.
But with progress of the society custom gradually diminish and legislation and
judicial precedents become the main source. Custom is created by the people,
by their unconscious adoption of a certain rule of conduct whenever the same
problem arises for solution and its authority is based on nothing but its long
continued use and recognition by the people. Custom is some kind of special
rule which is followed from time immemorial. Law based on custom is known
as customary law. Custom, as a source of law, involves the study of a number of
its aspects: its origin and nature, its importance, reasons for its recognition, its
classification, its various theories, its distinction with prescription and usage,
and the essentials of a valid custom.

The word ‘custom’ is derived from an old French word ‘Coustume’. Some says
that the word ‘custom’ is based on Latin word ‘Consuetudo’, some says that the
word ‘Custom’ is derived from the word ‘Consuetus’, while others say that it is
the part participate of word ‘Consuescere’ which means ‘ accustom’. Some says
that it is derived from two words ‘con’ means,‘expressing intensive force’and
‘suescere’ means ‘become accustomed’. In Hindi the word ‘custom’ means
‘reeti’,‘vyavahar’,‘rasm’, or ‘riwaj’. The word ‘custom’ literally,
grammatically, or ordinarily means; tradition, practice; usage; observance; way;
convention; procedure; ceremony; ritual; ordinance; form; formality; fashion;
mode; manner; shibboleth; unwritten rule; way of doing things; formal; praxis;
2 style; etiquette; routine; habit; usual; rite; Solemn; unwritten code;
conventional social behaviour; etc.

Ch .2 Meaning of custom

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A Custom is any established mode of social behaviour within the community.
Various dimensions of human behaviour which are prescribed by the
community or society hint at the conceptual frame of custom. It is considered as
one of the mechanisms of social control and an appropriate direction for humans
to live in the community and to allow the society to perpetuate. Custom in
Chamber’s 20th Century Dictionary means, ‘What one is wont to do: what is
usually done by others: any of the distinctive practices and conventions of a
people or locality, esp., those, of a primitive tribe’. Custom has been defined
and opined by various scholars, jurists and authors. “The word custom” as
defined by Sapir, “is used to apply to the totality of behaviour patterns which
are carried by tradition and lodged in the group, as contrasted with mere random
personal activities of the individual.” Radin states that “customs are regarded as
habitual ways of conduct among social groups.” While Carter maintains that,
custom is the “uniformity of conduct of all persons under like circumstances.”
According to Holland, “custom is a generally observed course of conduct.

In Subramanian Chettiar v. Kumarappa Chettiar1 custom has been defined as,

“A particular rule which has existed from the time immorial and has obtained
the force of law in a particular locality.” In Hur Prasad v. Sheo Dayal 2, custom
has been defined as ‘Rule which in a particular family or in a particular district
or in a particular sect, class or tribe, has from long usage obtained the force of
law.’ Citing Hur Prasad v. Sheo Dayal3, Sir Hari Singh Gour states that,
‘Custom is an established practice at variance with the general law.’

According to Sir John Salmond, “Custom is frequently the embodiment of those

principles which have commended themselves to the national conscience as
principles of justice and public utility.” He further states that “The national
conscience may well be accepted by the courts as an authoritative guide; and of
this conscience national custom is the external and visible sign.”

“Custom”, says Austin, “is a rule of conduct which the governed observed
spontaneously and not in pursuance of law set by a political superior.” Sir C.K.
Allen also defines custom “as legal and social phenomenon growing up by
forces inherent in society— forces partly of reason and necessity, and partly of
suggestion and imitation.”

1
AIR 1955 Mad 144.
2
26 W.R. 55 (P.C.); cited in, Tondon, M. P., “Jurisprudence (Legal Theory)”, (2010), Allahabad Law
Agency, Faridabad, at p 167.
3
Gour, Sir Hari Singh, “The Hindu Code”, (1973), Law Publishers, Allahabad, Vol. I, at p 156.

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According to Keeton, ‘Customary law may be defined as those rules of human
action established by usage and regarded as legally binding by those to whom
the rules are applicable, which are adopted by the courts and applied as source
of law, because they are generally followed by the political society as a whole,
or by some part of it.’ The Hindu Code 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.”

CH. 3 Definitions Of Custom

Custom is an important source of law and it is desirable to define the same.

Custom has been defined by various jurists as per their notion, understanding,
philosophy, views and opinion. The different jurists also defined custom on the
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basis of source, validity, practice, history &utility. Some of the important
definitions of custom are as follows:

1. Salmond: - According to Salmond, “custom is the embodiment of those

principles which have commended themselves to the national conscience as
principles of justice and public utility”.

2. Austin: - According to Austin, “custom is a rule of conduct which the

governed observe spontaneously and not in a pursuance of law set by a political
superior”.

3. Allen: - According to Allen, “custom as a legal and social phenomenon

grows up by forces inherent in society, forces partly of reason and necessity and
partly of suggestion and limitation.”

4. Holland: - He defined custom as “a generally observed course of conduct.”

5. Keeton: - According to him, “customary law may be defined as those rules of

human action established by usage and regarded as legally binding by those to
whom the rules are applicable, which are adopted by the courts and applied as
source of law, because they are generally followed by the political society as a
whole, or by some part of it.”

6. Harprasad v. Shivdayal. In this case the judicial committee of the Privy

Council observed, custom as a rule which in a particular family or in a
particular district or in a particular sect, class or tribe, has from long usage
obtained the force of a law.

7. Halsbury laws:- “A custom is a particular rule which has existed either

actually or presumptively from time immemorial, and has obtained the force of
law in a particular locality, although contrary to or not consistent with the
general common law of the realm.”

8. Herbert spencer:- According to him, “before any definite agency for social
control is developed there exists a control arising partly from the public opinion
of the living, and more largelyfrom the public opinion of the dead.” Thus it is
tradition passing on from one generation to another that originally governed
human conduct.

9. In Tanistry case, it was held that custom is jus non scriptum and it is evolved
by the people in respect of a place where it is followed. When people find any

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act to be beneficial and 5 agreeable to their nature and disposition, they start
practicing it from time to time and when it is continued for immemorial time, it
obtains force of law.

10. Carter: - According to him, “the simplest definition of custom is that it is the
uniformity of conduct of all persons under like circumstances.”

11. According to strand’s judicial dictionary of words and phrases, “custom

may be defined to be law or right not written, which being established by long
use and the consent of our ancestors, hath bin and daily is put in practice”

12. According to Webster’sEncyclopaedic unabridged dictionary, custom

means, i. A habitual practice; the usual way of acting in given circumstances. ii.
Habits or habit that is so established that it has the force of law. iii.Habits or
usages collectively convention. iv.Such habits collectively. v. A customary tax,
tribute, or service due by feudal tenants to their lord.

13. According to Dictionary of Legal Theoryin many societies, widespread or

long established custom is an important source of law.

14. According To Webster’sThird New International Dictionarycustom is; i.

Made or performed according to personal order usually to individual
specifications ii. A form or course of action characteristically repeated under
like circumstance.

15. According to Mitra’s legal and commercial dictionary, custom is a particular

rule which has existed either actually or presumptively from time immemorial
and has obtained the force of law in a particular locality, although contrary to or
not consistent with the general common law of the realm.

16. According to the law Lexicon, custom is a law not written, established by a
long usage, and the consent of our ancestors.

17. AccordingTo New Webster’sDictionary & Thesaurus, custom is a generally

accepted practice or habit, or convention,

18. According To New Shorter Oxford English Dictionary, custom is a habitual

or usual practice; a common way of behaving; usage, fashion, or habit; an
established usage which by long continuance has acquired the force of a law or
right.

CH. 4Binding force of Custom

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The very fact that any rule which has the sanction of custom raises a
presumption that it deserves the sanction of law also. Judgments are inclined to
accept those rules which have in their favor the prestige and authority of long
acceptance.

Salmond- Custom is to society what law is to the state. Each is the expression
and realization of the measure of man’s insight and ability of the principles of
right and justice. Custom embodies them as acknowledged and approved, not by
power of the state, but by the public opinion of the society at large. The binding
force of custom is that the existence of an established wage is the basis of
rational expectation of its continuance in the future. Justice demands that this
expectation should be fulfilled and not frustrated. Sometimes, a custom is
observed by a large number of persons in society and in course of time the same
comes to have the force of law. Reference may be made in this connection to
three grace days on bills of exchange. Customs rests on the popular conviction
that it is in the interests of society. This conviction is so strong that it is not
found desirable to go against it.

Paton- Custom is useful to the law giver and codifier in two ways. It provides
the material out of which the law can be fashioned- it is too great an intellectual
effort to create law de novo. There is inevitably a tendency to adopt the maxim
‘Whatever has been authority in the past is a safe guide for the future.’

CH.5 Kinds of Custom.

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Customs without Binding Obligation

Customs which are concerned with less important aspects of social life are
covered in this category. Most societies have certain customs with respect to the
kind of dress one is expected to wear on various occasions. For example,
wearing a black dress at a funeral ceremony in England but, white in India.
Well-established customs are observed at burials and other solemn ceremonies,
etc. A large section of people observe customs of certain kind for the funeral of
their deceased relatives, irrespective of the fact that it may not be affordable for
them. Whatever it may be, none of these customs is completely obligatory /
binding. Their sanction, in many cases though powerful, is imperfect. No man is
under an absolute compulsion to give a feast at the time of marriage or after the
funeral of the deceased relative, etc. All these customs are followed due to the
fear that non-observance of such customs may lead them to be socially outcaste.
Such customs are non-binding in the sense that they are not obligatory to
follow. People follow them due to the social pressure of public opinion. When a
custom of this type is violated, society usually reacts by showing social
displeasure or disapproval; but it has no sanction in the strict sense of the term.
Such customs can be called as ‘Social Customs’.

Customs with Definite Binding Obligation

In this category those customs are covered “which in a more definite and
stringent sense are regarded as the specific duties and obligations of men. Such
customs may regulate the obligation of marriage and the upbringing of children,
the transmission of property at death, or the modes of consummating and
fulfilling agreements. Such customs do not pertain to the sphere of social
formalities, outward decorum, or aesthetics; rather, they are concerned with the
serious business of society, the work that must be accomplished in order to
secure and guarantee satisfactory conditions for collective life.”4 Customs
covered in this category are backed by sanction which is more certain in its
operation than any other social customs. Such customs, if satisfy certain
standards or tests, acquire legal character, and their violation is met by typical
sanctions employed by the legal order. Such customs are enforceable and
obligatory. Such customs can be further divided into Legal Customs and
Conventional Customs. For the purpose of the present study the researcher is
more concerned with Legal Customs than to mere Social Customs.
4
Bodenheimer, Edgar, “Jurisprudence: The Philosophy and the Method of Law”, First Indian Reprint
(1996), Harvard University Press, U.S.A., at p 300.

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Legal customs

‘Legal Custom’ occupies a place by itself in that its sanction is more certain in
its operation than that of any other. “The effect of sanction”, writes Sir C. K.
Allen “is negative rather than positive: if the custom is not followed, certain
desired consequences will not be brought about.” For example, if a particular
custom is not followed, the marriage will not be treated as valid; the desired
consequences of becoming a husband and wife will not be brought about.
Children out of such marriage will not be treated as legitimate. Law, back by the
opinion at the earlier stage and at later stages by the tribunals of the community,
will forbid those relationships to be effected. Customary rules are ‘legal’ in the
sense that they are binding and obligatory rules of conduct (not merely of faith
and conviction), and the breach of them is a breach of positive duty. In legal
custom no option, however small, is left to the individual, as in other social
customs. Legal custom is operative per se as a binding rule of law, independent
of any agreement on the part of those subject to it. According to Salmond, ‘A
legal custom is one whose legal authority is absolute—one which in itself and
proprio vigore possesses the force of law.’Legal custom may further be
classified as General Custom and Local Custom.

General customs

General custom is that which prevails throughout the country and constitutes
one of the sources of the law of the land. It prevails throughout the territory of
the state and is observed by all the members of the society. There was a time
when common law was considered to be the same as the general custom of the
realm followed from ancient time.

Conventional customs

According to Salmond, ‘A conventional custom is one whose authority is

conditional on its acceptance and incorporation in agreement between the
parties to be bound by it.’ He further stated that, ‘In the language of English law
the term custom is more commonly confined to legal custom exclusively, while
conventional custom is distinguished as usage. Usages are not laws ex proprio
vigore.’ A conventional custom or usage is a practice established by having
been followed for a considerable period of time, and arising out of a contract
between the parties; it does not arise out of its own force. Thus, a usage or
conventional custom is an established practice which is legally binding, not
because of any legal authority independently possessed by it, but because it has
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been expressly or impliedly incorporated in a contract between the parties
concerned. Conventional custom may, again, be divided into two types—
General Conventional Customs and Local Conventional Customs. General
Conventional Customs are extensively practiced throughout the realm; whereas
Local Conventional Customs are limited to a particular place or to a particular
trade or transaction.

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CH.6 Requisites of Valid Custom.

The word ancient denotes that the custom must be of some antiquity. The term
‘ancient’ is equivalent to the expression ‘from time immemorial’. 5 According to
Blackstone, “a custom, in order that it may be legal and binding, must have
been used so long that the memory of man runneth not to the contrary.”
Salmond also states that, custom, to have the force of law, must be immemorial.
It must have existed for so long a time that, in the language of law, “the memory
of man runneth not to the contrary”. In English law, the expression ‘time
immemorial’ means ‘time so remote that no living man can remember it or give
evidence concerning it. Custom was immemorial when its origin was so ancient
that the beginning of it was beyond human memory, so that no testimony was
available as to a time when it did not exist.’ English law places an arbitrary limit
to legal memory and fixes 1189 A.D. (accession of Richard – I) as enough to
constitute the antiquity of a custom. But this was by no means the original
interpretation. For instance, Professor Plucknett quotes Azo (d 1230) who said:
‘A custom can be called long if it was introduced within ten or twenty years,
very long if it dates from thirty years, and ancient if it dates from forty years’.

Custom must be Uniform and Continuous

One of the essential elements of a valid custom, as has already been discussed
above, is that, it must be ancient. From the fact that the custom is ancient, it
follows that it must be uniform (and not variable), definite and continuous, for

5
Umrinath Chaudhari v. Goureenath, (1870) 13 MIA 542, at p 549

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these are the elements to establish its immemorial use. If there is
discontinuance, such discontinuance destroys its stability.

If a custom has not been followed continuously and uninterruptedly for a long
time, the presumption is that it never existed at all. Blackstone says that,
interruption within legal memory defeats the custom ‘continua dico ita quod
non fit legitime interrupta’. It is immaterial whether such discontinuance was
accidental or intentional. In its effect it amounts to an abandonment of the
custom

When it is said that the custom must be uniform what is implied is that, within
its circle of authority, it must have been given effect to as often as there was
occasion to have recourse to it. “A custom is not uniform”, says Sir Hari Singh
Gour, “if it is intermittent and not continuous. But law distinguishes the
interruption of a right from the interruption of its enjoyment. If there is
interruption of right, no matter for how short a period the right is extinguished,
and if the right is revived it may become the starting point of a new custom, but
it ceases to be the continuance of the old custom, and if the new right arose
within the time of legal memory so that its commencement is known, it ceases
to be an ancient custom.” When it is said that the custom must be uniform what
is implied is that, within its circle of authority, it must have been given effect to
as often as there was occasion to have recourse to it. “A custom is not uniform”,
says Sir Hari Singh Gour, “if it is intermittent and not continuous. But law
distinguishes the interruption of a right from the interruption of its enjoyment. If
there is interruption of right, no matter for how short a period the right is
extinguished, and if the right is revived it may become the starting point of a
new custom, but it ceases to be the continuance of the old custom, and if the
new right arose within the time of legal memory so that its commencement is
known, it ceases to be an ancient custom.”

Immemorial Antiquity

The first test of a valid custom is that it must be immemorial. It must be old or
ancient and must not be of recent origin. Allen, Paton, Salmond and all other
jurists are of the views that before custom can be have the validity in law; it
must be shown that the custom is of immemorial antiquity or origin. In the
words of Allen, “a mere habit, practice, or fashion which has existed for a
number of years nobody supposes to be Ipso factoan obligatory custom;
antiquity is the only reliable proof of resistance to the changing conditions of

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different ages.” But Dr. G. William has objected to it as the statement is
unconvincing.According to Blackstone, “A custom in order that it may be legal
and binding, must have been used as long that the memory of man runneth not
to the contrary. In ancient Hindu law also, the antiquity was one of the
essentials for the recognition of custom. Manu said, “Immemorial custom is
transcendental law”. The idea of immemorial custom was derived by the law of
England from the Canon law, and by the Cannon law from the Civil law. Time
immemorial means in the Civil law and Cannon law and in the systems derived
there from and originally meant in England also time so remote that no living
man can remember it or give evidence concerning it. In England a custom must
be of reign of Richard I King of England”. That is in England the time of legal
memory is 1189 for a custom to be regarded as valid. The year 1189, was the
first year of the reign of Richard I. But the English rule of ‘immemorial origin’
is not strictly to be followed in India. The Allahabad High Court as early as
1895 laid down in KaurSen v.Mamman,thatit would be inexpedient to apply the
English ‘rule of 1189’ in India as it would destroy many customary rights of
modern growth in villages and in other places. The Calcutta High Court, on the
other hand, in Ambalika Dasi v. AparnaDasiwas of the view that either 1773
A.D. or 1793 A.D. is the date for treating a custom which has been in existence
as immemorial. The Bombay High Court was of the view that if within last
20ye0ars, instances have occurred in which an alleged custom has been
recognized, the presumption is that it is of immemorial origin. Likewise the
Andhra Pradesh High Court following Bombay High Court observed in Venkata
SubbaRao v. Bhujangarryathat a custom being in existence for 40 years is an
enforceable custom. The Supreme Court, however, finally in Gogol Chand v.
Parvin Kumari, decided the mater once for all by laying down that the English
rules of custom in order to be valid must have been used so long that the
memory of man runneth not to the contrary should not be strictly applied to the
Indian customs. In India it has been said that a custom must be of old nature, but
there is no such fixed period for which it must have been in existence as it is in
the English law. The reason for not enforcing a modern custom is that otherwise
so many of the novel customs would become law. The law adopts sufficient
methods of protection against the development of vexatious acceptance of
modern customs. What otherwise would the value of 10 judge-made law have
been. To keep the force and power of precedent the law sees that modern or
unreasonable custom should not be accepted.

Reasonableness

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 The second important judicial test of a valid custom is that it must be
reasonable. It must not be unreasonable. It must be useful and convenient to the
society. If any party challenges a custom, it must satisfy the court that the
custom is unreasonable. That is the burden of proof lies upon the person who
challenges the custom. To ascertain the reasonableness of a custom it must be
traced back to the time of its origin. The unreasonableness of a custom must be
so great that its enforcement results in greater harm than if there were no custom
at all. According to prof. Allen, the unreasonableness of the custom must be
proved and not its reasonableness. Therefore, a custom shall not be valid if it is
apparently repugnant to right and reason and it is likely to do more mischief
than good if enforced. The authority of a prevailing custom is never absolute,
but it is authoritative provided it conforms to the norms of justice and public
utility. Sir Edward Coke pointed out that a custom is contrary to reason if it is
opposed to the principles of justice, equity and good conscience. Salmond has
rightly suggested that before a custom is denied legal recognition, it must be
found out that the mischief resulting from its enforcement outweighs the harm
that would result from the multiplication of the natural expectation of the
people. The judicial committee of the Privy Council, delivering its judgment
through Sir James Colville in Raja Varma v. Ravi Varma observed that a
custom which is not reasonable is invalid in law and not binding. In this case it
was held that a custom permitting the sale of trusteeship of a religious
endowment for pecuniary advantage of the trustee as unreasonable custom. In
Walstanton Ltd. v. Newcastle-under-Lyme Corporation, it was held that Courts
will not enforce unreasonable customs, for law will not allow what is
unreasonable and inequitable. In case of Lutchmeeput v. sadaulla, a plaintiff, a
zamindar sued to restrain defendants from fishing in certain bhils (ponds) which
formed part of his zamindari and where the defendants contended that they had
a prescriptive right to fish under a custom according to which all the inhabitants
of the zamindari have the right of fishing in the bhils, it was held that the
alleged custom was unreasonable the defendants may take away the entire of
fishing in the bhils leaving nothing for the plaintiff who was admittedly the
owner of them. The reasonableness must not judge by our modern view of
suitability. A custom should be regarded as sufficiently reasonable when it is
not opposed to the fundamental principle of morality, or of the law of the state
in which it exists, or principles of justice, equity and good conscience. It must
not be otherwise imprudent, harsh or inconvenient. The question of
reasonableness is one of law for the court. The standard which the courts apply

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has been defined by the Divisional court of the King’s Bench in Produce
Brokers co. v. Olympia oil and coke co., as “fair and proper, and such as
reasonable, honest and fair minded 11 men would adopt”. Brett, J, in Robinson
v. Mollett, stated the test even more broadly: “whether or it is in accordance
with fundamental principles of right and wrong.” It is not in respect of validity
of a custom that it should be reasonable, but a period of validity of a custom that
it should be reasonable, but a precedent which is plainly and seriously
unreasonable may be overruled instead of followed. Similarly, certain forms of
subordinate legislation, e.g. unreasonable by laws are as void and authoritative
as an unreasonable custom or precedent. Prof. Allen says: “The true rule seems
to be not that a custom will be admitted if reasonable, but that it will be
admitted unless it is unreasonable”

Morality

Third test of a valid custom is that a custom, to be valid, must not be immoral. It
is a well-recognized rule that a custom should not be opposed to decency and
morality. A custom must not be opposed to public plicyor justice, equity or
good conscience. In Mathura Naikin v. EsuNaikin, the Bombay High Court has
held that the custom of adoption of girls for immoral purposes, like dancing is
illegal as it was designed to perpetuate this profession. In case of Balusami v.
BalaKishna, the custom permitting marriage with daughter’s daughter has also
been held immoral. In Gopi v. jaggo, the Privy Council allowed a custom which
recognized and sanctioned re marriage of a woman who had been abandoned
and deserted by her husband. The Bombay High Court, in Narayan v.
Lavingheld a custom permitting a woman to desert her husband at her pleasure
and marries again without his consent to be immoral. Similarly in Keshav
Hargovan v. Bai Gundi, the same Court held as custom by which the marriage
tie could be dissolved by either husband or wife against the wish of the divorced
party on payment of a sum of money, to be immoral.

Continuance

The fourth test for a valid custom is that it must have been continuously
observed without any interruption. General rule is that if a custom has not been
followed continuously and uninterruptedly for a long time, the presumption is
that it never existed at all. It must have been in existence and recognized by the
community without any intervening break, for such duration as may, under the
circumstances of the case, be recognized as reasonably long. In case of

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Muhammad Hussainforki v. Syed Mian Saheb,it was held that unless there is
continuity there is no custom. A custom may be abrogatory and if it abrogates
another custom, such other custom ceases to exist. Blackstone has drawn a
distinction between the interruption of the “right” and the interruption of the
mere ‘possession”. It is the discontinuance of the ‘right’, for howsoever small a
time that ends the custom. It means that if possession for some time is disturbed,
but the claim to enjoy the custom is not abandoned, the custom continues. The
discontinuance of the right even for a day shall put the custom to an end.

Peaceable enjoyment

The next important test is that custom must have been enjoyed peaceably. If a
custom has been in dispute for a long time in a court of law or otherwise, it will
negate the presumption that it did originate by consent as most of the custom
naturally did. Therefore, for the enforceability of a custom; it is necessary to
show that the custom has been enjoyed without any disturbance or contest. A
custom is based on consent or habit, and unless there was an undisturbed
existence of the custom, we cannot say that it was based on the general consent
of the people.

Consistency

The test for a valid custom is that it must be in conformity with the statute law.
It should not be contrary to the statutory law. A custom should necessary yield
where it conflicts with a statutory law. This rule is observed as a positive
principle of law in England and countries like India which follow English law.
The Roman law and various continental systems, however, do not adhere to this
rule. Justinian in his corpus juris mentions several statutes which have fallen
into disuse by a posterior contrary custom. That is to say, the latter rule prevails
over the earlier, regardless of their origins and legislation has no inherent
superiority in this respect over custom. If an enacted law comes first it can be
repealed or modified by a later custom and vice versa. Commenting on this
aspect Savigny pointed out that customs and statutes are put on the same level
with respect to their legal efficiency and customary law may complete, modify
or repeal a statute, it may 13 create a new rule and substitute it for a statutory
rule which it has abolished. In Scotland and ancient Grace also a statute may
fall into disuse by the posterior contrary custom. But in India the position is
clear that custom must not be opposed to statute law, as the same thing has been
held by the Indian Supreme Court in Darshan singh v. Naimum Nisa Bibi.

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Obviously custom cannot abrogate a newly enacted legislation. For instance,
among the Hindus all the customary forms of marriage, adoption, succession, or
property have been abrogated by the newly enacted legislation concerning such
problems. Hence an old inconvenient and unjust custom cannot be set up
against statutory law. For instance, the custom of child marriage and usage of
dowry has no legal force in modern India. According to Coke, “No custom or
prescription can take away the force of an Act of parliament. “ A state can
abrogate a custom and not vice versa. However, it is to be observed that there
are writers who hold different views on this point. According to them,
legislation has no inherent superiority over custom. If the enacted law comes
first, it can be repealed or modified by a later custom. If the customary law is
the earlier, it can similarly be dealt with by later enacted law. According to
Savigny, “if we consider customs and statutes with respect to their legal
efficacy, we must put them on the same level. Customary law may complete,
modify or repeal a statute; it may create a new rule and substitute it for the
statutory rule which it has abolished.” According to Windshield, “the power of
customary law is equal to that of statutory law. It may, therefore, not merely
supplement but also derogate from the existing law.”

Certainty

Certainty is an indispensable condition of a valid custom. A custom, however,

ancient must not be indefinite and uncertain. In Wilson v. Wills, it was held that
a custom must be certain and not vague. A custom which is vague or indefinite
cannot be recognized. It is more a rule of evidence than anything else. The court
must be satisfied by a clear proof that custom exists as a matter of fact, or as a
legal presumption of fact. In one case, the plaintiff claimed a customary right of
easement for the shadow falling from the branches of trees hanging from the
neighbour’s field. Mr Justice Pandalai of the High court of Madras ruled that
there cannot be a custom relating to shadow of tress because it is so uncertain,
ambiguous and transitory that it cannot give rise to any customary right.

Compulsory observance

A custom to be legally recognized as a valid custom must be observed as a

right. It means that custom must have been followed by all concerned without
recourse to force and without the necessity of permission of those who are
adversely affected by it. It must be regarded by those affected by it not merely
as an optional rule but as an obligatory or binding rule of conduct. If a practice

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is left to individual choice; it cannot be treated as a customary law. These
requisites are expressed in the form of the rule that the user must be nec vi nec
clam necprecario- not by force, nor by stealth, nor at will. In Hamperton v.
Hono, it was held that if the observance of a custom is suspended for a long
time, it would be assumed that such a custom was never in existence.

Juridical nature

A custom must be of a juridical nature. A custom must refer to legal relations. A

mere voluntary practice not conceived of as being based on any rule of right or
obligation does not amount to a legal custom.

Public policy

Another test for the validity of a custom is that it should not be opposed to
public policy. This test may be included in the test of reasonableness, as it is
very wide term and it may include public policy as well. In case of Budanso v.
Faturr, a custom which would enable a woman to marry again during the life
time of her husband without any defined rules by which the marriage with the
first husband is dissolved before the second marriage is contracted, was held to
be contrary to public policy. In nut shell a custom is valid if it not contrary to
justice, equity or good conscience or opposed to public policy.

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Ch.7 Conclusion

Custom in the Hindu Marriage Act must be incorporated to bring the different
functions that constitute marriage under the class of 'Hindu', yet what was
esteemed important to approve relational unions has ended up being a ground
for invalidating relational unions keeping in mind the end goal to escape
marriage or to maintain a strategic distance from indictment for polygamy.

The different religious individual laws never pondered cross-religious relational

unions or cutting edge residential connections. Additionally, with composed
writings, traditions and critiques in view of the patriarchal development of the
general public, the utilization of these sources as legitimate law is preferential
towards men. While there are examples where the privileges of men have been
damaged because of the elucidation of the word custom, it is to a great extent
ladies who have endured. As is obvious from different legal choices examined
above and in addition those that have not found a specify here, there is a prompt
requirement for a uniform common code. While the contentions for and against
uniform common code are numerous, there are no less than a couple of
directions that should be received over all religions and ranks paying little mind
to standard law. In light of a legitimate concern for ladies, who are a large
portion of the casualties, it is important to criminalize polygamy(bigamy), make
enrollment of relational unions obligatory and generously translate the term
'custom', to incorporate any function, with proof of such service to be a
substantial marriage.

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