Custom

Custom is a traditional widely accepted way of behaving of the people. Salmond gave the code
that “a custom is to the society, what law is to the state” - It is the expression and realization of
the measure of man’s insight and ability of the principles of right and justice. Custom embodies
as acknowledged and approved not by power of the state, but by the public opinion of the society
at large.

Custom has four features:-

 Antiquity: that is followed from time immemorial. It is basically related to the ancient
times/past.
 Certainty: something which cannot be doubted/ which is established beyond doubt or
question.
 Continuity: without break, unbroken or uninterrupted.
 Consistency: without changing its nature. The nature of the true custom remains same. It
will never be called as custom if its subject matter changes.

Features of custom:

Antiquity: The meaning of antiquity is immemorial. It is basically related to ancient past.

Certainty: which can’t be doubted. It is something established beyond doubt or question.

Continuity: It means uninterrupted or unbroken which is being followed right from the earlier
times.

Consistency: the ability to remain same in behavior or unchanged behavior. The element of
firmness is integral of consistency.

Kinds of Customs

Generally custom is divided into three classes: Legal, Conventional, and Custom of Courts.
The legal custom is one whose legal authority is absolute. It possesses the force of law Proprio
Vigore (by its own). The parties affected may agree to a legal custom or not but they are bound
by the same. Legal custom is of two kinds: General and Particular

 General custom: Prevails throughout the country and constitutes a source of law and
land.
Common law is a kind of general custom. The common law of the realm (a domain in
which something is dominant) is the common custom of the realm.
 Particular custom: applicable to a particular entity or institution.
Possesses antiquity, consistency, continuity and certainty. Also must not oppose
fundamental laws or statue or public policy.

1
 This may be of the following kinds:-
Family Custom- The customs which are applicable and limited to a particular family are
called family customs. For example: whether a woman can be the head of a family or not
i.e. the karta or the head of the family can be a woman or the first child of a family is its
heir to the property owned by the family i.e. primo geniture. The culture that is passes
down from our fore fathers and what we subsequently transfer to the younger generations
which we follow becomes the custom.

Tribal custom: These are those customs which are applied within a tribe or between sub
-tribes for example, under a tribe, we have many sub-tribes. The rules and regulation
made by the tribes must be followed by the sub-tribes or how is the chief of a tribe to be
appointed- hereditary, election, or nomination. The issues relating to tribal custom even
include whether a marriage can take place among the member of tribe only or there is
possibility of inter-tribal marriage.

Local Custom: the customs which are restricted territorially to a particular locality is
what we call local custom. For example, the customs prevailing in a particular village of
Bihar need not be followed in its adjoining villages. These customs are only applied who
come and reside in the locality. These are also considered as exceptions to general
custom.

Personal Custom: Another name of personal custom is ‘prescriptions’. As suggested by

name, it is related to individual. (Establishment of a claim founded on the basis of long
for indefinite period or interrupted use). For example the custom passed down to a person
is his discretion whether continue with them or not.

Custom of Court
The precedent is said to be the custom of the court. It can be classified into two categories.

Pre 1189 A.D. Post 1189 A.D.

These are the laws of their own force and are
referred to as general custom. No written laws
and judgments based on prevailing custom or
consciousness of the person making it.
Customs were accepted by judges(kings, chief,
leader etc) before 1189 A.D
Practically accepted by common law
Judgments were not related to custom. Written
Laws came into force and judgments were
based according to law (acts/statutes).
Laws made after came into force.
Custom was not kept in mind while making
judgments.

2
Conventional Custom :- This type of Custom which comes into picture only when it is accepted
in agreements between the concerned parties to be bound by it. Independently it has no legal
authority. These may be incorporated expressly or impliedly. It has to be passed through
different stages. Firstly, it must be established question of fact and has to be determined by Jury.
Secondly, the courts should take take judicial notice of its usage in question. Lastly, the custom
is embodied into statute. For example :- In case of dispute arises between two countries, then the
mutual agreement is authorized only when the terms and conditions of an agreement is accepted
by both parties concerned. The Extradition Treaty signed between India-UK. So, the terms and
conditions of treaty have binding effect on both the countries as it has been mutually accepted by
both the countries. Similarly, the issue of sharing water of river Ganga between India-
Bangladesh and Kaveri Water Dispute between Karnatka and Tamilnadu. Indo-Pak
agreements/pacts between both countries.

Valid Requisites of Custom.

Cannot be substantial

What are requisites of valid custom?

A custom must have four features i.e. antiquity, certainty, continuity and consistency

a) Antiquity – ancient times

b) Certainty – anything which cannot be doubted
c) Continuity – unbroken
d) Consistency- unchanged
1) A custom to be valid must be proved to be immemorial. The idea of immemorial was
derived by the law of England. English law places a limit to legal memory and finds 1189
A.D. as enough to constitute the antiquity of the custom.
2) Another essential feature of a valid custom is that it must be reasonable. It must be useful
and convenient to the society. If any party challenges the custom it must satisfy the court
that the custom is unreasonable. To ascertain the reasonableness of the custom it must be
traced back to its time of origin. The unreasonableness of the custom be proved and not
its reasonableness.
3) Only that custom is valid which has been continuously observed without any interruption
from time immemorial. If the custom has not been followed continuously and
uninterruptedly for long time, the presumption is that it never existed at all.
4) The enjoyment of a custom must be a peaceful one if that is not so then it is not a custom.
It should be accepted to the each member of the society. It must not be in conflict with
other customs.
5) A valid custom must be certain and definite.
6) A custom is valid and if its observance is compulsory and on the other hand optional
observance is ineffective. It is the duty of the court to satisfy itself that the custom is

3
 observed by all concern and not by anyone who pleases to do so. (Relate personal
custom).
7) A custom must be general or universal. A custom is effectual only when it is universal in
the absence of unanimity of the opinion. Custom becomes powerless or other does not
exist.
8) A valid custom must not be opposed to public policy or the principles of morality. (Ex-
Child marriage, Sati pratha. Child marriage is still prevalent in Rajasthan and Haryana
despite there is law for its abolishment/prohibition).
9) A valid custom must not be in conflict with the statute / law of any country. No custom
can take away the force of an act of parliament i.e. a state can abrogate a custom if it
violates the fundamental law of land.
10) Custom must be consistent with each other. One custom cannot be setup in the opposition
to the another. If both are really customs then both are of equal of antiquity and both
established by usual consent which is to say that, contradictory customs are absurd in
nature.
Relationship of Custom and Law.

 How custom is treated as source of law?

 How custom and law are inter related?
 How binding force of custom is given the shape of law?

Custom is the embodiment of those principles which are commandment themselves to the
national conscience as the principles of truth, justice and public policy. The very fact that any
rule has the sanctions of customs raises a presumption that it deserves the sanction of law also.
Judges are inclined to accept those rules which have in their favor the prestige and authority of
long acceptance. Custom is the external and visible side of national conscience and as such is
accepted by the courts of law as an authoritative guide. Thus we can say that “ Custom is to the
society what law is to the state” ( code given by Salmond). The law embodies those principles as
they commend themselves to the incorporate community in the exercise of its sovereign power.
On the other hand custom embodies as acknowledge and approved not by the power of state but
by the public opinion of the society at large.

Another reason for the binding of the custom is that the existence of an establish usage is the
basis of our rational acceptance of its continuance in future. Justice demands that this exception
should be fulfilled and not frustrated. The observance of a custom may not be ideally just and
reasonable but it cannot be denied that it brings stability and certainty in the legal order. If a
custom brings stability and certainty and it is for welfare of the state not opposing to the public
policy or fundamental law of land then that custom is treated as positive custom and can be
finally given the shape of law or incorporated into the law.

4
For example:- In the case of California, the customs which are developed on the Gold Field
regarding the regulation of mining industries by a group of people were later on given the
authority of law by way of legislation as its usage were not in violation of fundamental law of
land. In the case of New Zealand the custom of the Maoris tribe, the original inhabitants of the
country were recognized by the Native Rights Act of 1865. Maoris tribe were given legal status.
Recognition was given in positive sense as it was not opposing to public policy and also due to
their long and peaceful presence in the country.

Sometimes a custom is observed by a large number of people in the society and in course of time
the same come to have the force of law. Custom rests on the popular conviction that it is in the
common interest of the society. The conviction is so strong that it is not found desirable to go
against it.

Custom is useful to the law giver and codifier in two ways. It provides the material out of which
the law can be given or law takes birth. Psychologically it is easier to secure reverence for a code
if it claims to be based on customs immemorially observed and they are true even though
historically they claim.

Note:- Please add Indian concept and elaborate those points relating (4 Features of
Custom).

 Evolution of Saptapadi as a custom.

 Followed since time immemorial without violating the fundamental law of land.
 Given shape of law/ incorporated in Hindu Marriage act, 1955 as an essential feature for
the solemnization of Marriage.