CUSTOM: SOURCE OF LAW

Meaning and Importance:

Generally, customs are the practices of a particular community or group which regulated the
conduct of the society in their relationship with each other. It may be defined as a continuing
course of conduct which by the implied or express approval of the community observing it
has come to be regarded as fixing the norm of conduct for members of society.

During the early stages of the development of a legal system, customs were an important
source of law but as the legal system grows its importance diminishes.

According to Paton, custom is useful in two ways:

 It provides the material out of which the law can be fashioned because it usually takes
a great deal of intellectual effort to create a complete new law.
 It is easier to secure respect for law which is based on custom.

Definitions:

 Salmond: Custom is the embodiment of those principles which have commended

themselves to the national conscience as principles of justice and public utility.
Custom is to society what law is to the state.
 Austin: Custom is a rule of conduct which is governed and observed
spontaneously and not in pursuance of law settled by the political superior.
 Keeton: Customs are 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 by some part of it.
 Holland: Custom is a generally observed course of conduct. He illustrates it by
pointing out that it grows just as a track is formed across a grassy land by constant
passing of people over it either intentionally or by mere accident. Once it is formed,
others follow the same track and thus a path is made. Likewise, a custom once started
becomes a course of conduct in a given society.
  Allen: Custom is a legal and social phenomenon grows up by forces inherent in
society, forces partly of reason and necessity and partly of suggestion and
limitation.
 The Judicial Committee of the Privy Council in Harprasad v. Shivdayal, observed
that custom is a rule which has obtained the force of law in a particular family or
region due to long usage.
 Section 3(a) of the Hindu Marriage Act, 1955 defines custom as:
“Any rule which having been continuously and uniformly observed for a long time,
has obtained the force of law in any local area, tribe, community, group or family.
Provided that such rule is certain and not unreasonable or opposed to public policy.”

Classification: Customs in their wider sense may be divided into two classes:

 Custom without sanction: These customs are non-obligatory and are observed due to
pressure of the public opinion.
 Custom having sanction: These customs are enforced by the state and are obligatory.
It is further divided into:
 Legal Custom: These are those customs which are operative per se as binding
rules of law. They have been recognised by the courts and have become a part of
the law of the land. Legal customs may be divided into two classes:
 General Custom: Those customs which prevail throughout the territory of the
state.
 Local Custom: Those customs which applied only to a defined locality, sect
or family.
 Conventional Custom: Those customs which govern the parties to an agreement.
Parties, sometimes, expressly and impliedly agree to them and such customs are
binding not due to any legal authority but because it has been expressly or
impliedly incorporated in a contract.
The development of conventional customs essentially involves three stages,
firstly, it must be so well established as to have become a usage. Secondly, it gets
recognition through a judicial decision. Thirdly, it is accepted as a statutory law
after its codification.
The law relating to Bill of Exchange and most of the provisions of the Sale of
Goods Act have their origin in the conventional customs which were followed
from time immemorial.
Difference between Custom and Usages:

 A custom is binding irrespective of the consent of the parties; on the other hand,
usages are binding only when they are not expressly excluded by the terms of
agreement entered into by the parties.
 A custom to be valid should have been in existence from time immemorial whereas it
is not so in case of usage.

Essential of a valid custom:

 Reasonableness: A custom must be reasonable. The authority of a prevailing custom

is never absolute, but it is authoritative provided it conforms to the norms of justice
and public utility. A custom shall not be valid if it is apparently repugnant to right and
reason and it is likely to do more mischief than good if enforced.
A general observance of a custom leads to the presumption that it has a rational basis
and that it is useful and convenient. The party disputing the validity of a custom must
satisfy the court of its unreasonableness. Dr. Allen pointed that, “the true rule seems
to be not that a custom will be admitted if reasonable, but that it will be admitted
unless it is unreasonable.”
In Ram Dhan Lal v Radhey Shyam, it was observed that the custom of recognising
the channel of the river or stream as the boundary between two or more villages
irrespective of its change in path cannot be said to be unreasonable and hence it was a
valid custom.
 Consistency: A custom to be valid, must be in conformity with statute law, in other
words, it should not be contrary to an Act of Parliament.
 Compulsory Observance: A custom to be legally recognised as valid must be
observed as of right. It means that custom must have been followed by all concerned
without recourse to force and without the necessity of permission of those who are
adversely affected by it. If the observance of a custom is suspended for a long time, it
would be assumed that such a custom was never in existence. Blackstone pointed
that, “a custom that all the inhabitants shall be rated towards the maintenance of a
bridge, will be good, but a custom that every man is to contribute thereto at his own
pleasure, is idle and absurd and indeed no custom at all.”
 Continuity and Immemorial Antiquity: A custom to be valid must be proved to be
immemorial. According to Blackstone, “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. So that if anyone can show the beginning of it, it is no good custom.”
English Law has set an arbitrary but necessary limit to legal memory. It has fixed
1189 A.D.- the year of accession of King Richard I as good enough to constitute the
antiquity of a custom. It means that if the continuance of a custom is traced back to
1189 A.D., the custom shall be held as a legally valid custom.
In India, the English rule of recognising the year 1189 A.D. as the limit for reckoning
immemorial antiquity does not apply. All that is required to be proved is that the
custom has been in existence from the ancient time. In Baba Narayan v Saboosa, it
was observed that though the existence of a custom from a time immemorial is not
deemed necessary to give it legal validity, but it should be continuously in existence
for a long time. The long existence of a custom gives it the force of a right to make it
legally recognisable.
 Certainty: In order to prove the existence of a custom since time immemorial, it must
be shown that it is being observed uninterruptedly with certainty i.e. without any
change.

Further, a custom to be valid must not be immoral and must not be contrary to justice,
equity or good conscience or opposed to public policy. In Keshav Hargovan v. Bai Gundi,
the court observed that a custom by which the marriage tie could be dissolved by either
husband or wife against the wish of the divorced party on payment of a sum of money is
immoral.

When custom become law: An important question is whether a custom is already law and if
it is not law, when does it become law? Jurists have different views regarding the same.

 Austin (Positivistic School): According to him, 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 the Parliament or its validity has been established by
judicial decision.
 Savigny (Historical School): According to him, custom is law per se. It does not
require state recognition to become law. Custom is the badge and not a ground of
origin of positive law.
 Gray (Legal Realism): According to him, custom does not become law until it is
approved by the judge.
Conclusion: Custom has played an important role in the development of law and its
significance is being experienced even to this day. Though custom has lost its significance as
a source of law in modern age but it still exerts great influence in certain areas such as
personal law and to some extent even international law.