In modern law, before a custom can be enforced by a court, it is necessary to prove the existence of such custom. For a custom to receive recognition, it is necessary that it should be ancient and constant. It should be established by unambiguous evidence, and it should be continuous and certain. Such custom must not be unreasonable, immoral or opposed to statutory law. Barring a few matters relating to marriage and inheritance, if a custom is in conflict with any of the statutory Hindu law, the former must give way to the latter. The changes introduced by the various statutes have to be taken into consideration.
In Hurpurshad vs Sheo Dayal1), the Privy Council has observed that, “a custom is a rule which, in a particular family, or a particular caste or community, or in a particular district, has from long usage obtained the force of law. It must be ancient, certain and reasonable”. Moreover, such a custom must not be immoral, opposed to public policy, or expressly forbidden by law.
In Mookka Kone vs Ammakutti Ammal2), it was held that where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy.
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.
A custom to be valid must have four essential attributes. First, it must be immemorial; secondly, it must be reasonable; thirdly, it must have continued without interruption since its immemorial origin, and, fourthly, it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect3).
A custom is local Common Law. It is Common Law because it is not Statute Law; it is Local Law because it is the law of a particular place, as distinguished from the general Common Law. Local Common Law is the law of the country (i.e., particular place) as it existed before the time of legal memory. [Hammerton vs Honey4)]
A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that “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” should not be strictly applied to Indian Conditions.5)
A custom, in order to be valid, should have the following features—
A custom is valid, if it has been followed since ancient times. There is no definition of ‘ancient’. Where a custom is being followed for around 100 years or more, such custom is said to be ancient enough. A custom cannot come into existence by agreement. It has to exist from long before. Thus, a new custom cannot be recognized. It need not be of immemorial antiquity, but a long usage is necessary.
It should be shown that the custom has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular class, community or locality.
A custom should have been in existence for such a long time that in the language of the law “the memory of man runneth to the contrary”.
In the words of Littleton, “no custom is to be allowed, but such custom has hath been used by title of prescription, that is to say, from time out of mind.” [Thankamma vs N Kunjamma6)]
In the case of Gokul Dichit vs Maharaj Dichit7), it was held that a period of 43 years was enough to establish a custom.
In the case Garuradhwaja Prashad Singh vs Suparandhwaja Prashad Singh8) a question of a family custom was raised. Their Lordships of the Judicial Committee considered that the evidence of unbroken custom for 80 years since the occupation by the British of the province was sufficient.
According to Plucknett, a custom can be called long, if it was introduced within 10 or 20 years, very long if it dates from 30 years and ancient if it dates from 40 years. This idea of immemorial custom of antiquity as a requisite for a valid custom was the contribution of the Canon Law to the English Law. Time Immemorial in English Law means “time so remote that no living man can remember it or give evidence concerning it.”
Custom is said to be immemorial, when its origin was ancient, that the origin or beginning of it was beyond human memory, so that no evidence was available as to a time when it did not exist. [Thankamma vs N Kunjamma9)]
As a general rule, proof of the existence of the custom, as far back as living witnesses can remember, is treated, in the absence of any sufficient rebutting evidence, as proving the existence of the custom from time immemorial, and that evidence of the existence of the alleged custom for a period of twenty years may be sufficient to warrant a court in finding as a fact the existence of the custom from time immemorial.10)
If, then, the evidence shows that, for a certain number of years, and some cases appear to lay down as a useful guide a period of twenty years, there have been a number of instances in which the alleged custom has been recognized, the presumption arises that the parties concerned have acted in that manner, not from the desire to set up a new custom, but because they are acting in accordance with the tradition of immemorial usage and as long as texts are not cited and experts called to negative the alleged custom, it is unnecessary to cite texts or call experts to support it. [Parshotam Ganpat Gujar vs Venichand Ganpat Gujar11)]
A valid custom should have been followed continuously and should not have been abandoned. Thus, a custom may be 400 yrs old, but once abandoned, it cannot be revived.
The custom should be very clear in terms of what it entails. Any amount of vagueness will cause confusion and, thus, the custom will be invalid. In order to make a custom definite and certain, universality in observance is necessary. If the custom is varied from time to time, there will be no universality. Consequently, it will not be a valid custom.
There must be some reasonableness and fairness in the custom. What is reasonable depends on the prevailing time and social values. A custom should be in accordance with the rules of justice, equity and good conscience.
The party who wants to enforce a custom should prove that custom is in conformity with 'justice and public utility'. The true rule is that a custom in order to be deprived of legal efficacy must be so obviously and seriously repugnant to right and reason, that to enforce it as law would do more mischief than that which would result from the overturning of the expectations and arrangements based on its presumed continuance and legal validity. [Thankamma vs N Kunjamma12)]
A custom may not be illegal or immoral; but it may, nevertheless, be invalid on the ground of its unreasonableness. A custom which any honest or right-minded man would deem to be unrighteous is bad as unreasonable.13)
As to the test of immorality, it must be determined by the sense of the community as a whole and not by the sense of a section of the people. Custom should not be morally wrong or repugnant. A custom which is abhorrent to decency or morality however long practiced and recognized by a particular community, can find no kind of enforcement by a court of law. Not one decided case so far as we are aware, has approved of a custom which is contrary to the sacred writings or which puts a premium on incest and immorality. If such a custom can be recognized, there is nothing untoward in legally acknowledging that a man can marry his own grandmother. [Baluswami Reddiar vs Balakrishna Reddiar14)]
—If a custom is against the general good of the society, it is held invalid. In the case of Mathur vs Esa, a custom among dancing women permitting them to adopt one or more girls was held to be void because it was against public policy.
In the case of Sheikriyammada Nalla Koya vs Administrator, Union Territory of Laccadives, AIR 1967 Ker 259, it was held that customs, which are immoral or opposed to public policy, can neither be recognized nor be enforced. But the question is unreasonable to whom? Is a custom which appears unreasonable to the Judge be adjudged so or should he be guided by the prevailing public opinion of the community in the place where the custom prevails? It has been said that the Judge should not consult his own standards or predilections, but those of the dominant opinion at the given moment, and that in arriving at the decision, the Judge should consider the social consequences of the custom especially in the light of the factual evidence available as to its probable consequences. A Judge may not set himself in opposition to a custom which is fully accepted by the community.15)
In order that the custom is declared valid, it must not be forbidden by any Act of the Legislature. If it is so forbidden, the courts will not recognize such a custom, although it may satisfy all the other requirements of a valid custom. The courts have refused the custom authorizing a wife to abandon her husband and marry again. Likewise, the custom among dancing girls of adopting one or more daughters has been refused. A custom permitting a husband to pronounce divorce by payment of a sum of money to the wife has been held void.A custom to be valid and enforceable should not be contrary to the statutory law.
Lord Code said—“No custom or prescription can take away the force of an Act of Parliament. By no length of desuetude can a statute become obsolete and inoperative in law, and by no length of contrary usage can its provisions be modified in the smallest particular.”
The law will yield to immemorial local custom, but the enacted law stands for ever. However, when a custom is accepted as the law to be applied in the adjudication of the rights of parties, it has got some legal efficacy in a statute.
Savigny says—“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.”
Windscheid says—“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. And this is true, not merely of rules of customary law inter se, but also of the relations of customary to statute law.”
It is well established principle of law that though custom has the effect of overriding law which is purely personal; it cannot prevail against a statutory law, unless it is thereby saved expressly or by necessary implication.16)
In Abdul Hussain Khan vs Bibi Sona Dero17), when it was pleaded that by customs of the family, the sister of an intestate Mohammedan was excluded from inheritance in favour of a male paternal collaterals, by operation of section 26 of the Bombay Regulation IV of 1827, (a usage was in question in the suit), it was held that the custom was not established to exclude the sister of the deceased from inheritance.
In the Hindu system of law, clear proof of usage will outweigh the written text of the law. In the event of conflict between a custom and a text of the Smritis, the custom overrides the text.18)
In Collector of Madura vs Moottoo Ramalinga19), the Judicial Committee of the Privy Council observed that under the Hindu system of law, clear proof of usage will outweigh the written text of law. It has been repeatedly stated that a custom may be in derogation of Smriti and where proved to exist may supersede that law. It may, however, be observed that though local and family custom, if proved to exist, will supersede the general law; the general law will in other respects govern the relations of the parties outside that custom.
The English rule that 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” has not been strictly applied to Indian conditions. All that is necessary to prove is that the custom or usage has been acted upon in practice for such a long period and with such invariability and continuity as to show that it has by common consent been submitted to as the established governing rule in any local area, tribe, community, group of family. Certainty and reasonableness are indispensable elements of the rule.
All customs pleaded and of which the courts do not take judicial notice must be clearly established and proved to be existing. The onus of establishing it is on the party relying upon its existence. It is for the party, who asserts that he is ruled in regard to the particular matter by custom, that he is governed by it and not by personal law, and further to prove what the particular custom is. Commanding nature of a particular course of conduct, emanating from the faith in its propriety produces a uniformity of behaviour in following it. And, the uniformity of behaviour in relation to a particular course of conduct generates the belief that it is imperative, or proper to do so. Be that as it may, when a uniform and persistent usage has come to be evolved molding the life and regulating the dealings, of a section or class of people, or a community, it becomes a custom among that section, or class of people, or the community and plays its part as their personal law.20)
In the case of Asha Rani vs Gulshan Kumar21) Hon’ble Supreme Court has laid down that a custom must be proved to be ancient, certain and reasonable, if it is to be recognized and acted upon by courts of law. The specific family custom pleaded in a particular case should be proved by the party pleading it. It must be proved that the custom has been acted upon in practice for such a long period and with such invariability, as to show that it has, by common consent, been submitted to as the established governing rule of the particular family. Custom no doubt, can be proved by oral evidence of witnesses acquainted with custom, instances and general pronouncements.
No customary rule of conduct will be enforced unless it satisfies those general requirements of the law which are well known, and which alone can give to it a claim to judicial recognition. Hence, previous adjudication on the question whether a particular rule of conduct satisfies those requirements, would afford guidance in subsequent cases; and such previous decisions may be binding on the court considering the same question subsequently; that question being whether the alleged rule of conduct can be enforced at all or whether, e.g., it is uncertain or opposed to public policy, or unreasonable. This question is one of law and may be considered irrespective of the question whether the custom actually exists. But a further question has always to be considered (unless the parties admit that it must be answered in the affirmative) whether the rule of conduct (assuming that it has all the elements entitling it to be so recognized) applies to any particular person. The latter question is a question of fact; and for the reason, the latter question is resolvable into: have the particular parties as a matter of fact adopted this rule of conduct? [Kunhambi vs Kalanthar22)
According to P Pramanatha Aiyar, a custom may be proved or disproved in any of the following ways—
A court takes judicial note of a custom, if such custom is so clearly established that no further evidence of its existence is necessary. When a custom or usage is repeatedly brought to the notice of the court, such a custom will form a part of the law without any need of proof of such custom in every case in the future. In these circumstances, the courts are said to take ‘judicial notice’ of that custom.
If the community to which the parties belong has modified by long established usage the ceremonies prescribed by the shastras and has adopted new forms and new conventions, they must be recognized by the courts. But the essential requisite for recognition of such a custom is that it must be sufficiently ancient and definite, and the members of the caste or sub-caste or family must recognize it as obligatory. It should not be left to the will of the caste or sub-caste to alter it at their will and pleasure, for the essence of custom or usage is that it is an ancient one recognized and adopted by the caste and has certainty about it. The validity of a marriage has to be tested and determined in accordance with the provisions of the law governing the parties and not in accordance with the rules laid down by any association or a society. If the caste has been able to establish its usage regulating the form and the requisites of a valid marriage, such a usage being transcendent law is obligatory and it is binding not only upon the parties, but also on the courts which are bound to recognize and give effect to the usage.23)
In Raja Rao vs Raja of Pittapur24), their Lordships of the Privy Council have held that when a custom or usage is repeatedly brought to the notice of the courts of the country, the court may hold that customary usage introduced into the law without the necessity of proof in each individual case.
In Ujagar Singh vs Mst. Jee25), the Supreme Court has held that when a custom is repeatedly recognized by the court, it passes into the law of the land and the proof of it then becomes unnecessary under section 57 of the Evidence Act.
In RBSS Munnalal vs SS Rajkumar, the Supreme Court was called upon to decide the question whether the custom recognized among Jains to adopt a son without the express authority of her husband is required to be proved or a judicial notice of that can be taken. The Supreme Court has noted that the custom as pleaded has been recognized by judicial decisions spread over a period longer than a century. A review of the cases decided by different courts clearly showed that the custom was generally applicable to Jains all over India except Jains domiciled in Madras and Punjab. The Supreme Court found that the cases in which the custom is proved to have been established, the courts have arrived at the conclusion after consideration of the evidence led by the parties wherein large numbers of witnesses were examined at different places. The court then reiterated that where the custom is repeatedly brought to the notice of the courts of a country, the court may hold that custom introduced in law without the necessity of any proof in each individual case.
The ratio laid down by the aforesaid decisions appears to be that the custom repeatedly brought to the notice of the court and found established by the courts will transform into law and can be taken judicial notice of without proof in each individual case.
The evolution of a legal system, in most of the cases, occurs from within the society and not externally. As a result, in the process of evolution of the legal system, certain customs have been transformed into laws. This process is characteristic of all the legal systems in different parts of the world.
Thus, various customs have played an important role in the development of any legal system. The Indian legal system that exists today has its origin in the system of Common Law that emerged in England. The Indian legal system, like the Common Law is full of customary laws and principles.
Custom plays an important role in Hindu Law and is accepted as part of the legal system in our country. Large numbers of Hindu tribal customs concerning personal status and inheritance have also been recognized. Section 2 (2) of the Hindu Marriage Act and the Hindu Succession Act have left the door open for the recognition of tribal customary laws and practices of ‘Scheduled Tribes’. Customary Hindu practices in marriage and divorce have also been recognized by the courts in India.
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on various subjects including Jurisprudence, Hindu Law and Environmental Laws.