CUSTOM AS A SOURCE OF LAW

1. Introduction:

Custom is a habitual course of conduct observed uniformly and

voluntarily by the people. In ancient societies, custom was considered as
one of the most important source of law; In fact it was considered as the
real source of law. With the passage of time and the advent of modern
civilization, the importance of custom as a source of law diminished and
other sources such as judicial precedents and legislation gained importance.
Custom as a source of law, involves the study of a number of its aspects; its
origin and nature, its importance, reason for its recognition, its
classification, its various theories, its distinction with prescription and
usage and the essentials of a valid custom.

2. Meaning:
The term ‘custom’ literally means – tradition, practice, usage,
observance, unwritten rule, convention, habit etc. A custom is a
continuing course of conduct which may be the acquiescence or express
approval of the community observing it, has come to be regarded as
fixing the norms of the conduct for members of the society. Custom can
simply be explained as those long established practices or unwritten rules
which have acquired binding or obligatory character.

How Custom evolves?

When people find any act to be good and beneficial, apt and
agreeable to their nature and disposition, they use and practice it from
time to time, and it is by frequent use and multiplication of this act that
the custom is made.

3. Definitions of Custom:
Custom has been defined by many jurists as per their notion,
understanding, philosophy, views and opinions. They have defined
custom on the basis of source, validity, practice, history and utility. Some
of the important definitions of the custom are as follows:
 (a) Salmond: According to Salmond, “custom is the embodiment of
those principles which have commanded themselves to the national
conscience as principles of justice and public utility”.

(b) Austin: According to Austin, “custom is a rule of conduct which the

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

(c) Holland: He defined custom as “a generally observed course of

conduct”.

(d) Carter: According to him, “the simplest definition of custom is that

it is the uniformity of conduct of all persons under like
circumstances”.

(e) Keeton: He defines the custom 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 court and
applied as a source of law because they are generally followed by the
political society as a whole or be some part of it”.

4. Essential Elements of Custom or Requisites of a Valid Custom

All customs can’t be accepted as a
source of law, nor can all customs be recognised and enforced by the
courts. (e.g., there is a custom or practice among Hindus that the male
relatives of the deceased shave off their heads as a mark of condolence,
but if a man does not follow this custom, the court is certainly not going
to punish him.) Thus, the jurists and the courts have laid down some
essential tests for customs to be recognised as a valid source of law.
These tests are summarised as follows:
4.1. 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 v.
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.

4.2. 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.

4.3. Reasonableness:
A custom to be valid must be reasonable. To ascertain the
reasonableness of the 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.
If any party challenges the custom, it must satisfy the court that the
custom is unreasonable. Thus, the burden of proof lies on the person
who challenges the custom. 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.
4.4. 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. Esu
Naikin (1880), 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.

4.5. Peaceful Enjoyment or Observance:

Another important test is that custom must have been
enjoyed peacefully. It must not be followed by force or it must not be
in dispute in a court of law.

4.6. Certainty:
Certainty is an indispensable condition of a valid custom. A
custom, however, ancient must not be uncertain or vague. The Court
must be satisfied by a clear proof that custom exists as a matter of fact
or as a legal presumption of fact.

4.7. Compulsory Observance:

A custom to be legally recognised as a valid custom must be
observed as a right. It should not be followed merely as a optional rule
but as an obligatory and binding rule of conduct.

4.8. Public Policy:

Another test for the validity of a custom is that it should not be
opposed to public policy. In case of Budanso v. Faturr, it was held
that a custom which would enable a married woman to marry again
 during the life time of her husband without dissolving the marriage
was contrary to public policy.

4.9. Conformity with Statute Law:

A custom to be valid must be in conformity with statute
law. It is a positive rule in most of the legal systems that a statute can
abrogate a custom.

Conclusion:
If a custom is proved to have above essentials, it is law but the
courts have power on sufficient ground to change the law it embodies.

5. Theories regarding Transformation of Custom into Law:

There are two theories regarding the
transformation of custom into law, namely, the Historical theory and
Analytical theory.

5.1. Historical Theory: (Custom is law per se and recognition of

State is not necessary.)
The main exponents of this theory are Savigny, Blackstone,
Puchta and Sir Henry Maine. They have suggested that law has its
existence because of common consciousness of the people and
customary observance is not the cause of law but the evidence of its
existence.

According to Savigny, “custom is per se law. He says that law is

based on the custom. A custom carries its justification in itself. He
says that law is the manifestation of the common consciousness of the
people. He observed that, “customary laws completely modify or
repeal a statute, it may create a new law and substitute it for statutory
rule which it has abolished.”

According to Puchta, custom is not only self sufficient and

independent of legislative authority, but is a condition precedent
of all sound legislation.
 According to Henry Maine, “custom is a source of formal law”.

Thus, 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. Law has its existence in the general will of
the people.

5.2. Analytical Theory: (Recognition of State is necessary for

custom in order to become law.)
The main exponent of this theory is John Austin, Gray and
Holland.
According to Austin, custom is not law in itself, but it is a source of
law. He pointed out that a custom derives its binding force not from
its own nature, but by State recognition. It means that a custom
becomes a law when it is adopted by an Act of Parliament or its
validity has been established by judicial decision.

Gray also held 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 the State recognition. He
observed that binding authority is conceded to custom by the State
when it fulfils certain essential requirements, such as reasonableness,
continuity, antiquity etc.

Conclusion: Both the views are not absolutely correct:

The views of historical theory and analytical theory are
not absolutely correct.

The views of Historical Theory (School): Criticism

There are many jurists who argue that it is wrong to
think that custom gives authority to precedent and statute law.
According to them, a custom is not itself binding unless it fulfils
certain essential requirements such as reasonableness, consistency,
immemorial antiquity to be accepted as binding law. A statute on the
other hand, is binding, however, unreasonable it might be and even
though it has fallen into disuse for a long time. Thus, a custom can’t
abrogate a statute law but a statute law can abrogate a custom.
Further, customs does not always originate from the common
consciousness, some customs are the result of imposition by the ruling
class, e.g. slavery or bonded labour.

The views of Analytical Theory (School): Criticism

The views of analytical theory that custom are
not law until recognised by sovereign contains partial and not the
whole truth. Dr. Allen has criticised this theory. He says that it is not
right to say that custom is not law until it has been so pronounced by a
court. He observed that custom is firstly and essentially a law. In his
view, custom is enforced by courts because it is already law, it does
not become law only on enforcement by court.

Correct Position:
Neither of the two theories can be treated as wholly
correct though there is some truth in each of them. The correct
position lies in the synthesis of the two views and by adopting a
sociological point of view. A custom as a source of law came into
existence with the origin of society. Prior to legislation and the
coming of State into existence, the customary rules use to regulate the
human conduct. Therefore, they had the same force as the ‘laws’ have
in modern state. It is for this reason, it has been said that, “custom is to
society what law is to the State.” With the progress of society,
legislative and judicial organs of the State started emerging their
influence on custom.
No doubt, courts do play an important role in deciding the validity of
laws and in this process sometimes they seek recourse to custom, and
if a custom fulfils certain requirement, they declare the law valid.
Thus, the function of the court is declaratory rather than constitutive.
 A custom becomes law whenever it satisfies the tests prescribed for its
validity. If the court comes to the conclusion that an alleged custom is
continuously in existence and generally observed and fulfils the
requirements of being treated as law, it must declare it as ‘law’ and
such a custom shall become a legal custom.

6. Classification of Custom/ Kinds of Custom

Custom can be classified into two types:

1. Custom without sanction

2. Custom having sanction

Custom having sanction can be further divided into two types:

i. Legal Custom
ii. Conventional Custom (usage)

Legal Custom can be further classified into two types:

(a) General Custom

(b) Local Custom

Local customs can be further classified into two types:-

(a) Geographical Local Custom
(b) Personal Local Custom

1. Custom without sanction:

These are those customs which are non-binding or non-
obligatory. They are observed due to the presence of public opinion or
societical pressure. (For example, there is custom is north India that the
elder male member of the family will shave off his hair on the death of
any member of the family)
2. Custom having sanction:
These are those customs which are enforced by the state. These
customs are backed by the sanction. These customs are of two types:

(i) Legal custom:

Legal customs are those whose legal authority is absolute
and unconditional. They are operating binding rules of law
independent of any agreement between the parties. They have been
recognised by the courts and have become a part of the law of the
land. They are enforced by the courts. Legal Customs can be
further divided into two types:

(a) Local Custom:-

A local custom is that which prevails in some defined
locality, that is, to a district, town, or an area or which is
followed by some definite family or group of families.

For example: In Punjab, the custom that the brother can marry
his brother’s widow is valid custom even though such marriage
is prohibited in the Hindu Marriage Act. This is a local custom.

Local custom can be divided into two types: (i) Geographical

local custom (which is operating in particular locality or area,
e.g., any custom followed by people of Punjab in different areas
are Geographical local custom), and (ii) Personal local custom:
sometimes, certain sects, or families take their customs with
them wherever they go. These customs are known as personal
local custom.

(b) General Custom:

A general custom is that which prevails throughout
the country and constitutes one of the sources of law of the land.
For example: the custom of eldest male member of the family
inheriting the entire family property of the deceased Karta of
the joint hindu family was a well established custom in India
before the enactment of the Hindu Succession Act. Similarly,
 the custom of prohibiting widow remarriage in most of the
communities in India prior to the legislation in this regard was a
well established general custom in this country.

(ii) Conventional Custom (Usage):

A conventional custom is also known as usage. It is an
established practice whose authority is conditional on its exclusion
in the agreement between the parties bound by it. In simple words,
a conventional custom is conditional and condition is that it will be
binding on the parties only, if it has not been excluded by them in
their agreement.
For example: In India, it is an usage to pay house rent in advance
to the landlord, but if both parties agrees through agreement then
they can exclude this usage.
A conventional custom is binding on the parties not because of any
legal authority, but because of the fact that it has been expressly or
impliedly incorporated in a contract between the parties.
A conventional custom can be further divided into two types:
(a) local (b) national.
In order to acquire the status of law, a conventional custom must
also fulfil the essentials of a valid custom. Thus, it must be
immemorial, it should not be contrary to statutory law, it should be
reasonable, and it must be in conformity with morality and public
policy. In addition to this, a conventional custom need not
necessarily be confined to a particular area. It may relate to any
trade or commercial dealing which may be national or even
international. Further, a conventional custom or usage which is
contrary to any express condition laid down in a contract between
the parties, shall not be enforceable by law.
7. Difference between Custom and Usage ( Usually, a Conventional
Custom is referred to as usage):
Some of the important points of distinctions between custom and
usage are as follows:-
Custom
1. A custom is binding
irrespective of the consent
of the parties.
2. A custom to be valid
should have immemorial
antiquity.
3. On fulfilling the necessary
conditions, a custom
operates as a source of law
either for the entire
community or the particular
territory in which it
operates.
Usage
1. An usage is binding only
when they are not expressly
excluded by the terms of
the agreement entered into
by the parties.
2. It is not necessary in case
of usage. A usage of recent
origin can be given effect
by the courts on the ground
that parties had contracted
with reference to the usage.
In case of Noble v.
Kennoway, Lord
Mansfield said that, it is no
matter if the usage has only
been for a year’.

3. A usage only adds a term to

the contract.

8. 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.
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 and democratic
socialism.
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.