CUSTOMS

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, customs come into existence whenever human beings come together, as no association of
human beings can exist permanently without adopting some definite rules of conduct for
regulating their bahaviour and for providing solutions whenever any dispute or problem arises
among them. It is one of the oldest sources of law-making. 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.

WHAT IS CUSTOM?

The word ‘custom’ ordinarily means; tradition, practice, usage, observance, way, convention,
procedure, ceremony, ritual, ordinance, form, formality, fashion, mode, manner, unwritten rule,
way of doing things etc
The word ‘custom’ generally means the following:
● It means a usage or practice common to many individuals.

●It is long established practice considered as unwritten law and resting for authority on long
consent, usage, and prescription.

● It means repeated practice, i.e., frequent repetition of the same act.

● It is the whole body of usages, practices, or conventions that regulate social life.

● It means to make familiar or to accustom.

● It is a tradition passing on from one generation to another.

● It means a usual, habitual practice, or typical mode of behaviour.

A custom is a continuing course of conduct which may by the acquiescence or express approval
of the community observing it, has come to be regarded as fixing the norm of conduct for
members of society.
C.K Allen’s definition: Allen defines customs as “the uniformity of habits or conduct of the
people under like circumstances”.
Salmond’s definition: defines custom, “Custom is the embodiment of those principles which
have commended themselves to the national conscience as principles of justice and public
utility."”
Halsbury’s definition: “ custom is some kind of special rule which is in actual existence and
possibly followed from time immemorial and which has acquired the force of law in a specified
territory, although it may be contrary to or inconsistent with the general law of the land.”
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”.
Holland: - He defined custom as “a generally observed course of conduct.”

ORIGIN OF CUSTOMS
There are divergent views among various jurists regarding the origin of customs:
1. Jurists of the Historical school are of the opinion that customs have their basis in the
common consciousness of the people (volksgeist)
2. Some jurists are of the opinion that customs originate because of necessity or
convenience
3. Jurists of the analytical school assert that judicial decisions are the basis of the customs
4. Some jurists opine that customs come into existence because of the tendency of the
people to imitate each other.
5. As per some jurists customs are sometimes imposed upon the people for the convenience
of minority ruling class.

CLASSIFICATION OF CUSTOMS

Customs can be broadly classified into:

 1. Customs Without sanctions

Customs without sanctions are those which are not obligatory and are followed just because of
public opinion and pressure of the society. It is also referred to as ‘positive morality’

2. Customs With sanctions

Customs which have sanctions are those which are enforced by the ruling body. These are again
divided into two types –

A. Legal Customs 

Legal Customs act as strict rules that are meant to be followed by everyone and action is taken
against anyone who breaks them. They are recognised by the courts and are part of the law.
Again, there are two aspects to legal customs, which are :

a. Local Customs – Local customs are those types of customs which exist in a certain
geographical locality and are thus part of that place’s culture. It is specific to that place
alone. However, when certain communities migrate, they take their customs with them.
And so, local customs are then further divided into two parts – geographical local
customs and personal local customs.
b. General customs: A general custom is a custom that is not specific to a single locality,
but rather it is followed by the whole nation or country. They are also part of the law.

B. Conventional Customs 

A conventional custom is an established ‘usage’ which is considered legally binding because it

has been incorporated in an expressly stated or implied contract. Before a court of law treats a
conventional custom as legally binding, certain prerequisites have to be fulfilled. These are :

 It must be shown that the convention is clearly established and also that the contracting
parties are fully aware of it. There is no fixed period before which a convention must be
observed before it is recognised as binding.
 The convention cannot alter the general law of the land.
  It must be reasonable.

Similar to legal customs, conventional customs can be divided into general (as mercantile
customs relating to negotiable instruments)or local conventional customs (local usages of
agriculture and tenancy).

Custom and Usage

 Custom and usage seems to mean one and the same thing, but the two essentially differ in
certain ways. 1. A usage is a repetition of acts whereas custom as the general rule arises from the
repetition since times immemorial.

2. Usage derives its authority from the consent of the parties to a transaction whereas custom is
binding irrespective of the consent by the parties.

3. a usage may exist without a custom, but a custom cannot exist without a usage associated to it.

4. A custom arise out of its own force, whereas, usage does not arise out of its own force but
arises out of contract between the parties. In other words a legal custom has its own independent
stand and is not a creature of agreement, on the other hand a conventional custom or usage does
not exist or arise out of any legal authority independently possessed by it; it arrives out of
agreement between the parties.
5. A mercantile usage need not establish antiquity, uniformity and notoriety which are so
essential in the case of a custom
6. On fulfilling the necessary conditions, a customs operates as a source of law either for the
entire community or the territorial section in which it operates. A usage only adds a term to a
contract.
Customs and different schools of jurisprudence
1. Analytical positivism: Austin having defined ‘law’ as the command of a political
superior or definite human authority addressed to political inferiors and enforced by a
penalty or sanction, held that custom becomes a law only when it receives judicial or
legislative recognition. According to him, customary law is not law at all, or that it is
‘imperfect’ or ‘inchoate’ law as it is not state created or state enforced. However, such
 perception of Austin excludes from the ambit of law those customs which exist with all
the force of law but have not come before the courts unlike those which through accident
have come before the courts and have been recognised there.
The rigours of the Austin’s theory have been mitigated by other Analytical Jurists following
Austin. Holland holds that courts do not on their own force make custom a law, it
merely decides the fact that there exist a custom. Courts give operation to customs not
prospectively from the date of such recognition, but also retrospectively; so far implying that
custom was law before it received the stamp of judicial authentication. Allen also disagrees
with Austin’s thesis. He regards custom as “self-contained, self-sufficient, and self-justified
law” and says that the function of the court is “declaratory rather than constitutive”.
2. Historical jurists: The Historical Jurists attached a much greater importance to custom.
They held that all early law was customary, and that the function of legislation is limited
to supplementing and redefining custom. According to Savigny, the real basis of all
positive law is to be found in the general consciousness of people (Volksgeist). Since this
consciousness is invisible, it is to be discovered by the external acts which manifest itself
in usages, manners and customs. According to Savigny, the acts required for the
establishment of customary law ought to be plural, uniform and constant. They may be
judicial decisions, but these are not indispensable for its establishment. To Puchta,
custom was not only self-sufficient and independent of legislative authority but was a
condition precedent, of all sound legislation

3. Hindu legal theory: Custom has always been given a very important place as a source of
law by the Hindu Jurists. Vrihaspati, Narada, Asahaya were in favour of unqualified
acceptance of custom even when they were in conflict with the written laws. In one text
of the Manusmriti itself, there is a hint to regard custom as superior to everything.
Manu says, “One should follow the righteous path that has been followed by one’s
ancestors. By following that path, one doesn’t suffer”. Yajanvalkya says that when a
country is conquered, its usages and customs and family traditions should be followed as
they were followed before. The Arthashastra writer, Kautilya, held that usages and
customs were of equal authority as evidence of law; and in case of conflict between them,
the former must be taken to be of greater force as being actually observed in practice.
 Thus, customs have played a very important role as a material source of ancient Hindu
law. The process of integrating custom with the law has always been going on. It is a
matter of common observation that Hindu rulers never ruled their population by
legislation. They never attempted to interfere in the long established practices of the
people.

These customs have been since long recognised by the British courts including the Judicial
committee of Privy Council. In the case Collector of Madura v. Moottoo Ramalinga, PC
declared that “under the Hindu system of Law, clear proof of usage will outweigh the
written text.” The Settlement Act of 1781 stated that the inhabitants of Bengal, Bihar and
Orissa should be maintained and protected in the enjoyment of all their laws, usages, rights and
practices. The High Courts Act of 1861 authorised the High Courts to decide cases according to
usages in the matter of inheritance and succession.

Even after independence, the customs have been deliberately saved by various legislations.
Custom as a source of law has found place in the Constitution of India Article 13(3)(a). Section
3 of Hindu Marriage Act, 1955 provides that “the expression custom and usage signifies any
rule which having been continuously and uniformly observed for a long time has attained the
force of law among Hindus, in any local area, tribe, community, group or family provided that
the rule is certain and not unreasonable and opposed to public policy.”

Section 10(iv) of the Hindu Adoptions and Maintenance Act provides that no person shall be
capable of being taken in adoption unless-

"he or she has not completed the age of fifteen years, unless there is a custom or usages
applicable to the parties which permits persons who have completed the age of fifteen years
being taken in adoption."

Even the judiciary in India has not lagged behind in recognizing the customs. In, Rukman Bai v.
Sukhman Bai (Chattisgarh), 2012(1( RCR(Civil) 121, it has been held by the High Court that
Custom is always considered as one of the source of law and is in fact one of the three sources of
Hindu Law . Indeed it is ruled that when ever there is a conflict between a custom and a text of
the Smritis, the custom overrides the text. It is ruled that under the Hindu system of law , clear
proof of usage will outweigh the written text of the law . Further, the Court held that the custom
has to be, clear , customary, consistent and long in period in its application. It has to be proved
by showing its origin, enforcement and recognition with the aid of documentary and oral
evidence by citing instances of members of the community who took its benefit for settlement of
their disputes inter se. It is only when the party relying upon such custom is able to prove it, the
Court may consider it proper to give effect to enforcement of such custom for determining the
rights of the parties else not.

The Supreme Court in Shyam Sundar Singh v. State of Bihar, AIR 1981 SC 178, held if there is
a clear usage to the contrary, Shastras have to yield.

Essentials of a valid custom

1. Antiquity: A custom must be in existence from time immemorial. 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.” English law fixed
the year 1189 to test the antiquity of a custom. A custom must be in existence prior to
1189, only then it can prove the consideration of antiquity. Under Hindu law also
immemorial customs are transcendental law. However India law does not fix any
particular year to test the antiquity of custom.

2. Continuance: A custom must be practiced without interruption; continuity is an essential

feature of the custom. Interruption within legal memory would defeat the custom. If a
custom becomes legally unenforceable even for a short time it would not the recognized
as a valid custom.

3. Peaceable enjoyment: if a custom has been in dispute in a court of law or otherwise, it

would negative the presumption that it did originate by the consent as most of the
customs naturally do.

4. Observance as of right: Custom must have been enjoyed as a matter of right. This right
should be enforceable. It must have been supported by general public opinion. If practice
was maintained by stealth or secrecy, it cannot become a custom.
5. Certainty: Custom must be certain. If the nature of the custom is not certain then it loses
its validity. Unless a custom is certain, it cannot be proved to have been time out of
mind. Willes, CJ, in a case said, “for how can anything be said to have been time out of
mind, when it is not certain what it is?”

6. Consistency: A custom must not be in conflict with other prevailing customs. The
customs must be in consistency with other customs. Difference or inconsistency in
customs will amount to different rules of conduct for a given situation.

7. Conformity with statute law: Custom should be conformity with statute law. A
legislative enactment can abrogate a custom. In case of inconsistency between custom
and statutory provision, former must give way to the latter.

8. Must not be immoral: Customs should not be opposed to decency or morality. Modern
States confer power of judicial scrutiny over customs and any customs which is against
public policy or against the notions of justice is abrogated by the Court. Best example is
abolition of Sati Pratha.

9. Reasonable: The true rule, as Allen said, “ seems to be not that a custom will be
admitted, if reasonable, but that it will be admitted, unless it is unreasonable.” The
unreasonableness of custom must be so great that its enforcement results in greater harm
than if there were no customs at all.

Present position of customary law

In primitive societies, custom was the sole source of law. With the passage of time, its
importance bagan to decline and instead, legislation and precedents started occupying most
of the fields which were hitherto occupied by the customs. One of the tests for a valid custom
is that it should be ancient. But the modern society is changing at such a rapid pace that this
test of antiquity seems to be a distant possibility. Modern society cannot wait for generations
for a custom to become antique. Further, due to scientific inventions, there arises subject
matter, which by no stretch of imagination can be regulated by customs, as for example,
cyber laws, patents, copyrights etc. further, there are matters which are urgent and for which
urgent legislation becomes inevitable, for example, matters relating to defence etc.

So we can say that custom as a source of law has lost its former position and importance.