Watch on YouTube

CUSTOM

* Custom - It is a rule, which a particular class, family, community, or district has owing to prolonged use, obtained the force of law. 

• Case: Deivanai Achi /s Chidambaram [AIR 1954 Mad 667]

In this case it was held that a custom to have the force of law, must be ancient, certain and reasonable. 

• Case: Laxmibai Vs Bhagwant Buva [AIR 2013]

→ In this case, the following rules or points were held-

1. Custom has the effect of modifying general personal law, but it does not override statutory law, unless it is expressly saved by it. 

2. It must be ancient according to Indian sense and need not be necessarily from time memorial in the English technical Sense. 

3. A custom must be proved by clear (actual instances) and by unambiguous evidence. It cannot be extended by analogy or logical process. 

 

Difference between Usage and Custom

* A usage is a repetition of acts whereas a custom is the law or general rule arises from such repetition after a prolonged period of time.

*A usage may exist without Custom, but a custom cannot arise without a usage preceding it.

* Types of Custom

1-Local Custom

2-Family Custom

3-Class Custom

1. Local Custom • A local custom is that custom which belongs to a particular locality or district and binding on the inhabitants of that place.

Case: Smt Subhani / Nawab [AIR 1941 Lah]154

In this case, the Judicial Committee observed that it is undoubted that a custom in a particular district (locality) derives its force from long usage, obtained in that locality the force of law. 

Case: Gokal Chand Parvin Kumari [AIR 1952 & 231]

In this case, the Supreme Court held that the

custom must be ancient but not according to the English technical sense. It must be ancient (has usage for a long period) and used with invariability to show common consent, been submitted to as the established governing rule of the particular district. 

2. Class Custom: A custom which is binding to a particular caste, community or profession etc and followed by them. 

3. Family Custom: A custom which is related to a family and is applicable to them wherever they live. 

* Essentials of A Custom

1. It Must Be Ancient

• A custom must be ancient which means it belongs to antiquity and practiced for a long time and should have been accepted as law binding upon them. 

• It must be ancient in India and need not be from time memorial (AD 1189) according to English "technical sense.

Case: Gokal Chand v/s Parvin Kumari (AIR1952 SC 231) 

2.It Must Be Invariable and Continuous

•For a valid custom, there must be continuity •They should be certain, invariable, continuous and well established.

• When a particular custom has been discontinued for a period, it would come to an end.

3. Clear And Unambiguous Evidence

• The evidence of a custom must be clear and unambiguous and cannot be extended by analogy or logical process. 

• It may be proved either by actual instances or by general evidence of the members of the community who would naturally be cognizant (aware) of its existence. 

4.Onus of Proof

•The burden of proof as to the existence of custom rests on the persons who set up a Custom contrary to law. 

• Case: Ahmed & Channi Bibi (30 CWN 506,510)

5. Reasonable

• A custom may be ancient, certain and reasonable 

• Customs are not to be enlarged beyond the usage without the parity of reason. 

• Unreasonable (mere vague allegations) custom is void. 

6. Not Opposed to Morality or Public Policy

•Though a custom may be clearly established, it cannot be enforced if it is immoral or is against public policy.

• If it is immoral or against public policy, it will be invalid (void). 

7. Not Opposed to Any Law 

•A custom should not be opposed to the express provisions of any law, nor should it be forbidden by law. 

• Case: Collector of Madurai's v/s Mootoo Ramalinga [(1868) 12 MIA 397]

In this case, the Privy Council observed. Under Hindu system of law, clear proof of custom will outweigh written text law. 

8. Custom Cannot be Created by Agreement

A mere agreement among certain persons to adapt a particular rule cannot create a binding on others, whatever its effect may be upon themselves. 

• Case: Gopal v/s Raghupati [(2015) 7MHCR 250]

In this case, it was held that the testimony of experienced and competent persons that certain acts done in accordance with a particular usage are held legal and valid by them, is admissible evidence, provided that statements are supported by examples of other acts done in accordance with the usage in question.

• Case: Sahadeo v/s Kison [5PLR 111]

It was held in this case that in cases of custom, the history of the class is to be considered, in order to establish the custom.