Importance of Custom in Indian Law

“Customs are oldest source of law”. “It is the outcome of habits. When a particular habit is followed for
a long time by the people regularly and habitually, the custom comes into being. When written laws
were more conspicuous by their absence in the primitive society, it was customary laws that regulated
human conduct in the primitive society. It is said that kings have no power to create custom and perhaps
less to destroy it. Customs largely influence the legal system of a state and the state gets rid of the bad
customs like Sati, Polygamy, and Dowry etc. only by means of legal impositions. The United Kingdom
provides the best example of customary laws which are found in the common law of England. In the
United Kingdom the law and custom are so intimately connected with each other that the violation of
convention custom will lead to the violation of law”.

Envision the occasions when there were no classified laws, the debatable inquiry at that point were how
to direct and administer? In early occasions, 'exceptionally' involved a significant spot for organization
taking all things together the social orders and is the most seasoned wellspring of law making.

As a groundbreaking wellspring of law, custom is a true blue and restricting, due to it commended
worth. According to Sir John William Salmond, "custom is the encapsulation of those standards which
have instructed themselves to the public still, small voice as standards of equity and public utility."

In “Hurpurshad v. Sheo Dayal (1876, 3 I.A. 259)”, the Privy Council saw that "a custom is a standard
which, in a specific family, or a specific position or local area, or in a specific region, has from long
utilization gotten the power of law. It should be old, certain and sensible". Additionally, a particularly
custom should not be corrupt, or went against to public strategy, or explicitly taboo by law.

On this point, the Privy Council has noticed: "Their Lordships are completely reasonable of the
significance and equity of offering impact to since quite a while ago settled uses existing specifically
areas and families in India, yet it is of the substance of uncommon utilizations, altering the customary
law of progression that they ought to be old and perpetual, and it is further fundamental that they
ought to be set up to be so by clear and unambiguous proof."

Importance of Custom in Indian Law

It should be reliably and constantly followed with no break since days of yore; nobody can recall or give
evidence concerning it. Manu saw that a prehistoric custom as otherworldly law.

It should be sensible, levelheaded and not went against to public approach. Sir Edward Coke thought
about that as a custom is in opposition to reason on the off chance that it is against the standards of
equity, value and great heart.

It should be compulsory and restricting standard of direct as against discretionary decision of a person.
Calling attention to obvious conviction, Blackstone noticed, 'a custom that every one of the occupants
will be apprised towards the upkeep of scaffold will be acceptable'.

It should be sure, explicit and ought not to be questionable or dubious. Where its reality gets dicey and
hesitant, it won't be perceived accordingly.
It should be reasonable, moral and in similarity with public profound quality other than generally
followed with unanimity of assessment and appreciated in a serene way.

Essentials of valid Custom

Customs can be anything which clarifies the standard of conduct of a specific bunch of individuals, it
tends to be a follow up based on which bunch of individuals can be ordered. They are probably the
soonest wellspring of law. It can then again be called as customs, social belief system and social way of
thinking.

1. Ancient-The custom should be old, which ought to have been set up significantly sooner and
have existed for quite a while consistently. Artifact of a custom is a fundamental and premier
component of a substantial custom.
2. Invariable and Continuous -Customs to be substantial must be drilled for a particular timeframe
and ought to be as yet in presence. It very well may be taken as proof for having the power of
law and for having specially acknowledged according to laws. It ought to be followed with no
interference.
3. Clear and unambiguous evidence-There ought to be clearness in giving the proof of a custom.
The bunch of individuals who are following it should demonstrate it through their activities or
acts or general occurrences for the presence of such custom. In authority of Madura v. Mootoo
Ramalinga, the court held that if there is obvious evidence of custom, it will override the
composed content or laws.
4. Reasonable-The custom should be upheld by the substantial explanations behind being
followed. To consider it as a legitimate custom it is important that such custom has been gotten
from a progression of reasons. It has some sensibility for its reality.
5. Not opposed to Morality or Public Policy- Customs ought not be against the public approach
which implies it should focus on the prosperity of individuals, great individuals. Customs ought
not be contrary to the social standards. Customs ought not be against the virtues or set of moral
principles that the general public follows.
6. Not opposed to any law-Customs to be legitimate and acknowledged according to law, it should
not be in criticism with the laws of the country. The traditions should not be against
dharmashastras. It should not be illegal by any laws or institution of the council. It is essential
that traditions are guarantee with the laws to be acknowledged as a legitimate custom.

Custom and Usage

Custom and use appears to mean very much the same thing, yet the two basically vary unquestionably.
A use is a reiteration of acts while custom as the overall principle emerges from the redundancy since
days of yore. Utilization gets its position from the assent of the gatherings to an exchange though
custom is restricting independent of the assent by the gatherings. In straightforward words, an
utilization may exist without a custom, yet a custom can't exist without a use related to it.

Custom and Prescription

Remedy is restricted to the privileges of an individual and his archetypes, along these lines it is a types of
custom. At the point when a course of direct is drilled for quite a while, it offers ascend to law and
order, to get custom and in the event that it offers ascend to one side, it is remedy. Remedy is kept to
the individual right while custom reaches out to a specific spot of local area and not at all like custom;
solution need not to be followed from days of yore. For a custom to be substantial it should be in
similarity with the rule of regular equity, it isn't in the event of remedy. In basic words, custom is a
wellspring of law while discernment is a wellspring of right.

Conclusion
Customs is a social thought which appears with the presence of the general public and characterizes an
ordinary outline of lead, which is the attribute of life. The impact of custom can be followed in any
overall set of laws as straightforwardly or by implication, purposely or unwittingly, customs oversee the
general public and structure the premise of enormous number of laws. However, with the progression
of time and the approach of contemporary civilization, the significance of custom as a wellspring of law
is decreasing and different sources are acquiring importance. In the beginning phases of the general
public the traditions are the most significant, and now and again, the sole wellspring of law. The
traditions lie in the establishment of all the overall set of laws. They appear with the presence of the
general public. Custom is the rehashed practice of the crude society. Custom is a standard or practice
which is trailed by individuals from days of yore. Customs are excused and are fused and encapsulated in
lawful standards. The impact of custom can be followed in any general set of laws. In Roman law the
imaginative principle of the justices, in English law that of value judges, Custom is a legitimate wellspring
of law. In any case, it should be a substantial custom. The different variables which make a custom
substantial and restricting are prehistoric vestige, sensibility, congruity, serene pleasure, assurance,
similarity with public approach and rules, and profound quality.