Custom as A Source of Law

Introduction
The word ‘custom’ is derived from an old French word ‘Costume’. Some says that the word
‘custom’ is based on Latin word ‘Consuetudo’. In Hindi the word ‘custom’ means
‘reeti’,‘vyavahar’,‘rasm’, or ‘riwaj’.Custom enjoys a very important place in every legal
system.

Definition
According to Allen – ‘custom as the uniformity of habits or conduct of the people under like
circumstances’

Salmond: -custom as those principles that are acknowledged and approved not by the power
of the state, but by public opinion of the society at large.

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

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”.

Halsbury: - custom is some kind of special rule which is in actual existence and possible
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.

Origin of custom:

Some jurists are of the opinion that customs originate because of necessity or convenience.
the opinion of the historical school that customs have their basis in the common
consciousness of the people .In analytical school assert that judicial decisions are the basis of
customs. Custom came into existence because of the tendency of human beings to imitate
each other.

In 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.

Essentials element of a valid custom

1. Antiquity: A custom to be valid should be in existence from the time immemorial. It

must be old or ancient and must not be of recent origin. In England, the year
1189, i.e., the reign of Richard 1 King of England has been fixed for the
determination of validity of custom. However, in India there is no such time limit for
deciding the antiquity of the customs. The only condition is that those should have
been in practice since time immemorial. In the case of Gokul Chand vs
Parvin Kumari (1952), the Supreme Court of India held that the English rules
of custom in order to be valid 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.
2. Continuance: Another requisite 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 recognised by
the community without any intervening break. In the case of Mohd. Hussainforki
v. Syed Milan Saheb, it was held that unless there is continuity, there is no custom.

3. Reasonableness: - A custom ought to be reasonable. Whether a particular custom is

reasonable or not, shall depend upon the discretion of the court. This is one of the
most difficult question what is reasonable? Allen said seems to be not that a custom
will be admitted if reasonable, but it will be admitted unless it is unreasonable . The
divisional court of the king s bench defined as “fair and proper, and such as
reasonable, honest and fair-minded men would adopt”. In the case of Raja
Varma v. Ravi Varma, the Privy Council held that a custom which is not
reasonable is invalid in law and not binding.

4. Morality: - Mostly custom are on the basis of morality. Morality: - Mostly custom are
on the basis of morality. Another condition for a valid custom is that it should not be
immoral. It a well-recognised rule that a custom should not be opposed to decency
and morality. It should not be opposed to public policy, justice, equity and good
conscience. Courts have declared many customs as invalid as they were
practised for immoral purpose or opposed to public policy. E.g. in the case of
Mathura Naikin v. EsuNaikin (1980), the Bombay H.C. held that the custom of
adopting girls for immoral purposes (dancing) is illegal. Similarly in case of
Balushami v. Bala Kishna, the custom permitting marriage with daughter’s
daughter has also been held immoral.

5. Conformity with Statutory Law: - In order to be valid, a custom must be in

conformity with statutory law. Most of the legal systems of the world have laid down.
A rule that a custom can be abrogated by a law passed by the legislature. However, in
some cases, a custom can even override the codified law.

6. Certainty: -custom must be certain. A custom, however, ancient must not be

indefinite and uncertain. Certainty is an indispensable condition of a valid custom.
unless a custom is certain it cannot be proved to have been time out of mind. Jessel
M,R, said “when we told that custom must be certain that relates to the evidence of a
custom”.

7. Peaceful Enjoyment: - A custom should have been enjoyed peacefully in the society
in order to be recognized as law.

8. Binding or obligatory force: - Blackstone stated that a custom must be supported by

the opinio necessitatis. The public which is affected by the usage must treat it as
obligatory and not a facultative one.

9. Public Policy :- A valid custom should not be opposed to public policy .in this
sence ,public policy implies the principles on which the social laws are based.

Classification of custom
 1. Legal Customs: These are those customs which are recognized by the courts and
thus operate as the law of the land. They are divided into two categories,
a. General Customs: - These customs are prevalent throughout the territory of a
state and the general customs constitute one of the sources of the common law
of the land. They are considered to a part of the law of the land.
b. Local Customs: - These customs are applicable only to a particular locality,
like, city village, district etc. These are geographical local customs and
personal local customs. These customs of particular localities are recognised
by the courts even in derogation of the common law.

2. Conventional Customs: The authority of conventional customs or usages depends

upon their implicit incorporation into contracts. These are those customs which are
incorporated into an agreement and are applicable only to the parties to that
agreement. Parties to an agreement may agree to follow then either expressly or
impliedly. A conventional custom is also called ‘usage’.

When Custom Become Law: There are two theories 1. Historical Theory. 2. Analytical
Theory

1. Historical Theory: -The main exponents of this theory are Karl Von Savigny, his
disciple Puchta, Blackstone, and Sir Henry James Summer Maine. According to
Savigny, custom is per se law. He says law is based on custom. A custom carries its
justification in itself. According to Puchta, the custom is independent of the law of
sovereign. It is independent of any declaration or recognition by the state. Sir Henry
Maine regards custom as source of formal law. According to Manu, “custom is
transcendent law”.J.C.Gray also contends that great many laws were brought in not
only without the wishes of the people but against the wishes of the great mass of
them. Allen also pointed out that all customs cannot be attributed to the common
consciousness of the people According to this theory, the growth of law does not
depend upon the arbitrary will of any individual. Custom is derived from the common
consciousness of the people. It springs from an inner sense of right. Law has its
existence in the general will of the people. The Historical theory has been criticized
by Paton as “The growth of most of the customs is not result of any conscious thought
but of tentative practice”

2. Analytical theory: - The main exponent of this theory is Austin. According to him,
custom is not law in itself, but it is a source of law. If a custom is not recognized by
the legislation and approved by the judiciary, it will not become a law. Gray also says
that true view is that the law is what the judges declare. The legislation, precedents,
customs and morality are all sources of law. According to Holland, customs are not
laws when they arise but they are largely adopted into laws by State recognition. A
custom is a law only to the extent to which, and from the time, when the sovereign
sanctions it. According to him, custom is a legal material and source of law. This view
is also supported by Salmond. Gray also concedes that custom is one of the sources of
law but it is certainly not the sole source of law. The Analytical theory has been
criticized by Allen in these words-“Customs grow by conduct and it is therefore, a
mistake to measure its validity solely by the element or express sanction accorded by
courts of law or by other determinate authority”
Position of Custom in
Indian Legal System:-
In all legal
systems, custom enjoys an
important place in
regulating human conduct.
It is regarded as an
important source of law.
All ancient Hindu jurists
(Manu, Narada,
Brihaspati, Yajnavalkaya)
gave
to custom a high place
which even was
obligatory on the king.
However,
no doubt, with the
emergence of
legislation as a source
of law, the
importance of custom has
diminished, but it still
have great influence in
certain areas such as
personal law,
mercantile law and
even the
international law.
Position of Custom in Indian Legal System:-
In all legal systems, custom enjoys an important place in regulating human conduct. It is
regarded as an important source of law. All ancient Hindu jurists (Manu, Narada, Brihaspati,
Yajnavalkaya) gaveto custom a high place which even was obligatory on the king. However,
no doubt, with the emergence of legislation as a source of law, the importance
of custom has diminished, but it still have great influence in certain areas such as
personal law, mercantile law and even the international law. In the case of Mohd.
Ahmad Khan v. Shah Bano (1985 SC), the Supreme Court while emphasizing the
need of uniform civil code which could be applicable to all castes and communities
living in India, observed that in this process, the ancient customs of different
communities shall have to be taken into consideration so that the uniform law so evolved
conforms to the Indian traditions.
In India, the personal laws of Hindus and Muslims have mostly based on customs. The laws
relating to succession, marriage, inheritance, property, contract, sale of goods, negotiable
instruments etc. are evolved from the early customary rules. The Constitution itself under
Article 25, 26 and 28 indirectly guarantees the protection of such customary practices
of a community which of course are not contrary to the concept of secularism

In the case of
and democratic socialism.

Mohd. Ahmad Khan v.

Shah Bano (1985 SC),
the
Supreme Court while
emphasizing the need of
uniform civil code which
could be applicable to
all castes and
communities living in
India,
observed that in this
process, the ancient
customs of different
communities shall have to
be taken into
consideration so that the
uniform
law so evolved conforms
to the Indian traditions.
Conclusion: In the early stages of the society the customs are the most important, and in some
cases, the sole source of law. The customs lie in the foundation of all the legal system. They
come into existence with the existence of the society. Custom is the repeated practice of the
primitive society. Custom is a rule or practice which is followed by the people from time
immemorial. Customs are rationalised and are incorporated and embodied in legal rules. The
influence of custom can be traced in any legal system. In Roman law the creative rule of the
magistrates, in English law that of equity judges, and a galaxy of great writers on law from
Bracton to Blackstone, in Hindu law that of the Smritikars, the Commentators and the Privy
Council decisions have materially affected the form as well as substance of the customs.
Custom is a valid source of law. But it must be a valid custom. The various factors which
make a custom valid and binding are 19 immemorial antiquity, reasonableness, continuity,
peaceful enjoyment, certainty, conformity with public policy and statutes, and morality.