CUSTOM: A DETAILED EXPLANATION

1. Introduction to Custom
Custom is a habitual practice or tradition that people follow voluntarily and uniformly over a long
period. It is one of the earliest sources of law and plays a significant role in shaping human behavior
in society. Before written laws and judicial decisions, customs regulated social conduct. However, as
societies developed, customs started losing their importance, and legislation (laws made by
governments) and judicial precedents (court decisions) became the primary sources of law.
A custom is formed when people repeatedly follow a particular rule or behavior because they find it
useful and acceptable. Over time, if it is widely accepted, it gains authority and may even become a
law. This type of law is known as customary law.
2. Meaning of Custom
The word custom originates from different languages:
 Old French: Coustume
 Latin: Consuetudo or Consuescere (meaning “to become accustomed”)
 Hindi: Reeti, Vyavahar, Rasm, or Riwaj
The term “custom” is used in various ways. It can mean:
 A habitual practice followed by many people in a particular place or class.
 A long-established practice that is considered an unwritten law.
 A tradition passed from one generation to another.
 A routine behavior followed over time.
For example:
 Shaking hands while greeting is a common custom in Western countries.
 In India, touching elders’ feet as a mark of respect is a traditional custom.
3. Characteristics of Custom
A custom has several key characteristics:
1. Repetition: It is formed through the repeated practice of a particular behavior.
2. Acceptance by Society: A custom must be widely followed by people in a community.
3. Long-standing Nature: A practice must be continued for a long time to be considered a
custom.
4. Uniformity: It must be followed consistently without major changes.
5. Binding Nature: Over time, customs become so strong that people follow them as if they
were laws.
For example, in some Indian communities, dowry was a custom for centuries. However, laws were
later made to stop this practice because it led to social problems.
4. How Custom is Formed?
A custom is created naturally by society. It does not require any formal written rules or enforcement.
It develops in the following way:
1. People start following a certain practice because they find it useful.
2. More and more people adopt the practice over time.
3. Society accepts it as the right way of doing things.
4. It becomes a well-established rule.
5. In some cases, it gets legal recognition and becomes part of the law.
A good example is the formation of a footpath in a park. Initially, one person walks across an open
space. Others follow the same path, and gradually, a permanent pathway is created.
5. Types of Custom
Customs can be classified into different types based on their scope and recognition:
1. Legal Custom: These are customs that have been recognized by courts and have the force of
law. They must fulfill certain legal requirements to be valid.
o Example: Hindu and Muslim personal laws in India are based on age-old customs.

2. Conventional Custom (Usage): These are customs followed by individuals or businesses

based on mutual agreements.
o Example: In business transactions, certain payment methods are customary.

3. General Custom: A custom followed throughout a country or region.

o Example: The practice of paying taxes is a general custom that later became law.

4. Local Custom: A custom followed in a specific locality or district.

o Example: Certain tribal customs followed in rural areas.

5. Class Custom: A custom followed by a particular social or professional group.

o Example: Certain rituals performed by Brahmins in Hindu ceremonies.

6. Court Custom: Customs followed by courts, also known as precedents or stare decisis.
o Example: The Supreme Court following its previous judgments in deciding cases.

6. Definitions of Custom by Jurists

Different legal experts have defined custom based on their views and observations:
 Salmond: “Custom is the embodiment of those principles which have commended
themselves to the national conscience as principles of justice and public utility.”
(This means customs develop based on what people think is fair and useful.)
 Austin: “Custom is a rule of conduct which the governed observe spontaneously and not in
pursuance of law set by a political superior.”
(People follow customs voluntarily, not because a government forces them.)
 Allen: “Custom grows up by forces inherent in society, forces partly of reason and necessity
and partly of suggestion and limitation.”
(Customs develop because society needs them and finds them useful.)
  Holland: “A generally observed course of conduct.”
(Custom is a common way of doing things.)
 Keeton: “Customary law consists of rules followed by society and accepted by courts as
legally binding.”
(If courts recognize a custom, it becomes part of the law.)
 Judicial Definitions: Courts have defined custom as a rule that has been followed in a family,
district, or community for a long time and has gained the force of law.
7. Importance of Custom
Even though written laws now dominate, customs still play a crucial role in legal systems worldwide.
Their importance includes:
1. Foundation of Law: Many laws originate from customs that were widely practiced in
society.
o Example: Ancient Hindu and Muslim laws were based on customs.

2. Guidance for Judges: In cases where no written law applies, judges often rely on customs to
make decisions.
3. Preserving Traditions: Customs help maintain cultural values and social norms.
4. Adaptability: Customs evolve with time to suit the changing needs of society.
8. Difference Between Custom, Usage, and Prescription
 Custom: A general and widely followed practice with the force of law.
 Usage: A local or conventional habit followed by certain people or professions.
 Prescription: A legal right obtained over time due to continuous usage (e.g., ownership of
land through long-term possession).
9. Essentials of a Valid Custom
For a custom to be legally recognized, it must meet these conditions:
1. Antiquity: It must have been followed for a long time.
2. Continuity: It should not have been discontinued at any time.
3. Reasonableness: It should be fair and not harmful to society.
4. Certainty: It should be clearly defined and followed in a consistent manner.
5. Not Against Public Policy: It should not go against the welfare of society.
6. Not Against Existing Law: A custom that contradicts a written law cannot be recognized.
10. Conclusion
Customs have played a vital role in shaping human behavior and legal systems. While modern legal
systems now rely more on legislation and judicial decisions, customs still influence many areas of
law, especially personal laws, business practices, and social traditions. Understanding customs helps
us appreciate how societies develop rules and adapt to changing times.
This text discusses the distinctions between custom and usage, custom and prescription, and the
judicial tests for a valid custom. Let me break it down for you in detail.
1. Custom and Usage: A Distinction
Custom and usage are both based on long-standing practices, but they differ in several ways:
1. Authority: A legal custom has the force of law and must be followed, whereas a conventional
custom (or usage) does not have absolute authority unless recognized by an agreement.
2. Binding Nature: Custom is binding whether or not the parties agree to follow it, while usage
is only binding if the parties do not explicitly reject it in a contract.
3. Local vs. General: A local custom applies only to a specific place or community, whereas a
usage can be more widespread.
4. Rights vs. Practices: A custom is considered a legal right, while a usage is simply a business
or social practice without legal obligation.
5. Antiquity: A custom must be ancient and long-standing, but a usage does not have to be
immemorial—courts can enforce a usage even if it is relatively recent.
6. Impact on Law: A local custom can override common law but not statutory law, whereas a
usage can modify common law only through explicit contracts between the parties.
7. Exclusion of Law: If common law cannot be excluded by contract, it also cannot be excluded
by usage, but custom can still override it.
8. Role in Law: A custom is a source of law for a whole community, whereas a usage only
modifies contracts between parties.
9. Mercantile Usage: Commercial usages do not need to be ancient, uniform, or widely known
to be valid, whereas a legal custom must meet these criteria.
10. Origin: A custom arises independently as a societal norm, whereas a usage arises from
agreements between parties.

2. Custom and Prescription: A Distinction

Custom and prescription are similar in that both arise from long-standing practices, but they serve
different legal functions:
1. Purpose: A custom operates as a source of law, while a prescription operates as a source of
rights.
2. Personal vs. Local: Prescription is a personal right acquired over time (e.g., the right to
access land), while a custom is a local practice that applies to a community.
3. Legal Effect: A long-followed practice becomes law through custom, while prescription
grants specific legal rights to an individual.
4. Time Requirements: Custom must be immemorial (extremely old), whereas prescription is
defined by statutory time limits (e.g., 20 years for acquiring property rights).
5. Origin: Custom arises from long-standing social practice, whereas prescription arises from
waiver of rights (i.e., not challenging a right over time).
 6. Nature: Custom is inherent in a place, applying to everyone there, while prescription is
inherent in a person, applying to a specific individual.
7. Claim Type: A custom applies equally to all in a community, while prescription grants a
right only to the individual claiming it.
8. Reasonableness: A custom must be reasonable, but this rule does not necessarily apply to
prescription.
9. Legal Interpretation: Under common law, prescription is associated with individual rights,
while custom applies to a general group.
10. Basis: Custom is based on long-standing tradition, while prescription is based on a lost grant
(i.e., the assumption that a right was granted long ago but is no longer documented).
11. Justice & Policy: A custom must conform to justice and public policy, whereas prescription
does not have this requirement.
12. Application: Custom applies to communities, while prescription applies to individuals.
13. Time Limit: Custom is based on an undefined period of time, while prescription typically
requires a 20-year uninterrupted period.
14. Legal Impact: Custom gives rise to law, while prescription gives rise to specific legal rights.
15. Flexibility: Custom is considered ancient without a specific time limit, but prescription takes
effect after a specific statutory period (e.g., 20 years).

3. Judicial Tests for a Valid Custom

Not every custom is legally enforceable. Courts follow certain tests to determine if a custom can be
recognized as law.
1. Immemorial Antiquity
 A custom must be ancient and not of recent origin.
 In England, a custom must date back to at least 1189 (the reign of Richard I).
 In India, courts do not follow a strict time limit but generally recognize 40–50 years of
consistent practice as sufficient evidence of custom.
2. Reasonableness
 A custom must be reasonable, meaning it should be useful, convenient, and fair to society.
 The burden of proof lies on the person challenging the custom to show that it is
unreasonable.
 Courts determine reasonableness based on the custom’s original intent and whether
enforcing it would do more harm than good.
Judicial Precedents on Reasonableness
 In Raja Varma v. Ravi Varma, a custom allowing the sale of religious endowments for profit
was deemed unreasonable and invalid.
  In Walstanton Ltd. v. Newcastle-under-Lyme Corporation, the court held that
unreasonable customs will not be enforced.
 In Lutchmeeput v. Sadaulla, a custom allowing villagers to fish in a landlord’s private pond
was deemed unreasonable because it deprived the landowner of his rights.
Modern Views on Reasonableness
 A custom should not be judged by modern standards of morality but by whether it conflicts
with fundamental principles of justice, law, and equity.
 Courts consider customs valid unless proven unreasonable (rather than requiring proof that
they are reasonable).
 Unreasonable customs, like unfair business practices, can be declared void.
Judicial Quotes on Reasonableness
 Brett, J. (Robinson v. Mollett): A custom must be in line with fundamental principles of
right and wrong.
 Prof. Allen: "A custom will be admitted unless it is unreasonable."

Final Thoughts
 Custom forms the basis of law and applies broadly, while usage is a business/social practice
that modifies contracts.
 Custom creates legal obligations, whereas prescription grants rights to individuals after long
use.
 Courts recognize only old, reasonable, and widely accepted customs.
Here’s a detailed explanation of the tests for a valid custom:
1. Morality
A custom must not be immoral, meaning it should align with principles of decency and justice. Any
custom promoting unethical or socially unacceptable behavior is invalid. Courts have invalidated
customs like:
 Adoption of girls for immoral professions such as dancing (Mathura Naikin v. Esu Naikin).
 Marriage with one’s daughter’s daughter (Balusami v. Balakrishna).
 A woman deserting her husband at will and marrying another man (Narayan v. Laving).
 Marriages being dissolved upon payment of money (Keshav Hargovan v. Bai Gundi).
2. Continuance
A valid custom must have been followed continuously without any interruptions. If a custom is not
followed consistently, it is presumed never to have existed. The rule states that:
 If a custom has been abandoned even for a short time, it ceases to exist.
 A distinction exists between possession (temporary lapse) and right (permanent loss). If only
possession is disturbed, the custom continues.
  In Muhammad Hussainforki v. Syed Mian Saheb, it was held that a custom lacking
continuity cannot be valid.
3. Peaceable Enjoyment
A custom must be accepted and followed without disputes. If a custom has been frequently contested
in court, it lacks the presumption of general acceptance. This means:
 A custom must exist due to mutual consent or general practice.
 If it has faced legal disputes for a long time, it loses its validity.
4. Consistency with Law
A custom cannot contradict statutory law. In India, customs that contradict laws are invalid. Courts
have ruled that:
 Statutory law takes precedence over customs (Darshansing v. Naimum Nisa Bibi).
 Customs like child marriage and dowry are invalidated by legislation.
 According to English law, no custom can override an Act of Parliament.
 Some legal scholars argue that custom and statutory law should be equal (Savigny,
Windshield), but in India, statute prevails.
5. Certainty
A valid custom must be clear and well-defined. If a custom is vague or ambiguous, it cannot be
legally enforced. For example:
 In Wilson v. Willes, it was ruled that a custom must be certain.
 A claim to an easement for tree shadows was dismissed as too uncertain (Madras High
Court ruling).
6. Compulsory Observance
A custom must be considered obligatory, not just an optional tradition. It should be followed by all
concerned without coercion. Courts have ruled that:
 A custom that is ignored for a long time is presumed non-existent (Hamperton v. Hono).
 A custom must be accepted as binding rather than being left to personal choice.
7. Juridical Nature
A custom must have legal significance, meaning it should create legal rights and obligations. Mere
voluntary practices that lack legal backing do not qualify as customs.
8. Public Policy
A custom must not contradict public policy. If a custom disrupts social order or is unfair, it is invalid.
Examples:
 A custom allowing a woman to remarry without dissolving her first marriage was held
contrary to public policy (Budanso v. Faturr).
 Customs opposing justice, equity, or good conscience are not valid.
Conclusion
A valid custom must be moral, continuous, peaceful, consistent with the law, certain, compulsory,
juridical, and aligned with public policy. If a custom fails any of these tests, it is not legally
recognized.
Here’s a detailed explanation of the concepts related to custom as a source of law:

Custom as a Source of Law

Customs are traditional practices that have been followed by society for a long time and are
considered legally binding. They are one of the earliest sources of law and play an important role in
shaping legal systems worldwide. To be recognized as a legal rule, a custom must meet several
requirements.
Essential Characteristics of a Valid Custom
1. Antiquity (Immemorial Existence)
o A custom must be ancient and should have existed for a long time.

o It should be followed for such a period that people believe it to be an established rule.

o In English law, a custom must be in existence since 1189 (the reign of Richard I) to
be considered valid.
2. Reasonableness
o A custom must be reasonable and must not cause hardship, injustice, or
inconvenience.
o It should promote social welfare and public good.

o A court has the power to reject a custom that is unfair or oppressive.

3. Morality
o A custom must not be immoral or contrary to justice, equity, or good conscience.

o Courts have declared customs invalid if they promote immoral practices (e.g.,
adoption of girls for immoral purposes or marriage practices that violate ethical
principles).
4. Continuance (Uninterrupted Observation)
o The custom must be followed continuously without any significant break.

o If a custom is discontinued for a long time, it loses its validity.

o It should be observed consistently by the community without interruption.

5. Peaceable Enjoyment
o A custom must be accepted and followed without disputes or conflicts.

o If a custom is frequently challenged in courts, it may not be considered a valid legal

rule.
6. Consistency with Law
 o A custom should not contradict statutory laws.

o In countries like India and England, statutory law overrides any conflicting custom.

o For example, the Hindu Succession Act replaced many old inheritance customs.

7. Certainty
o A custom must be clear, definite, and well-established.

o Vague or ambiguous customs cannot be enforced.

o In one case, the court ruled that a custom related to the shadow of trees was too
uncertain to be recognized as a legal rule.
8. Compulsory Observance
o A valid custom must be followed as a right, not as a voluntary practice.

o If people follow a practice out of choice rather than obligation, it is not considered a
legal custom.
9. Juridical Nature
o A custom must relate to legal relationships, not just social habits.

o Mere traditions that do not involve legal obligations cannot be considered customs.

10. Public Policy

 A custom should not be against public policy.
 Customs that violate fundamental social values or disrupt order are rejected.
 For example, customs allowing marriage without proper dissolution of the first marriage have
been held invalid.
11. Not by Analogy
 A custom cannot be extended by analogy.
 It must be proven through historical evidence and actual practice.
 A new custom cannot be created based on an old one by theoretical reasoning.

Transformation of Custom into Law

There are two major theories about how customs become law:
1. Historical Theory
o Advocated by jurists like Savigny, Puchta, and Maine.

o This theory states that custom is law in itself and does not require government
approval.
o Law originates from customs that evolve over time based on the consciousness of the
people.
 o The state does not create law but merely recognizes customs that already exist in
society.
2. Analytical Theory
o Advocated by Austin, Gray, and Holland.

o This theory states that custom is not law unless recognized by the state.

o A custom becomes law only when it is sanctioned by legislation or judicial decisions.

o According to this view, judges and lawmakers have the power to accept or reject
customs.

Classification of Custom
Customs are divided into two broad categories:
1. Custom Without Sanction
 These customs are followed due to public opinion but do not have legal backing.
 They are part of social traditions rather than legal rules.
 Example: Certain dress codes followed in religious communities.
2. Custom Having Sanction
 These are customs recognized and enforced by the state.
 They have legal backing and can be used in courts.
 They are further divided into:
i. Legal Custom
 These customs have absolute legal authority and are binding.
 They become part of the law through judicial recognition.
 They are of two types:
a. Local Custom
 Applies to a particular geographical area, community, or family.
 It must be recognized and followed consistently in that locality.
 Example: Traditional inheritance rules followed in a specific tribe.
b. General Custom
 Applies throughout a country or a large region.
 It influences the general legal system of the land.
 Example: The practice of common law in England, which evolved from general customs.
ii. Conventional Custom
 Also known as "Usage."
  It is a practice that becomes binding through agreement between parties.
 Unlike legal custom, it does not automatically become law unless accepted in a contract.
 Example: Business trade practices that are incorporated into commercial contracts.

Conclusion
Customs have played a foundational role in the development of legal systems. While they remain an
important source of law, their validity depends on meeting strict criteria. Courts examine customs
based on antiquity, reasonableness, continuity, morality, and consistency with statutory law. Although
some legal systems allow customs to override statutes, in most modern legal systems, statutory law
takes precedence over custom.