CUSTOM AS SOURCE OF LAW

SOURCES OF LAW- JURISTS CLASSIFICATION

 Salmond has done his own classification of sources of law:

 1. Formal Sources- source from which the rule of law

derives its force and validity. It is the will of the
state  (To Austin, “Law is the command of the sovereign.
So, sovereign power is the source of law.” To Hans Kelsen,
“Grundnorm is the source of law.” To Roscoe Pound ,
“Social demand is the source of law.” To Savighny stated
that, “History is the source of law”)

 2. Material Sources- Material Sources are those from

which the matter of law may be drawn from all kind
of material sources. (Legal – Acts, case law, custom,
conventional law based on local law and Historical –jurists
writings, Greek philosophy/Roman)

Other jurists again classified the sources as:

 Sources with Sanction: They are those customs which

are enforced by the State.

 Sources without Sanction: They are those sources which

are non-obligatory. They are observed due to the pressure
of the public opinion. Austin calls them “positive morality”.

 Indian sources of law – Hindu law (Sruti, Smriti,Texts

(DharmaSastras), Code of Manu) and Mohammedian law
(Quran, Sunnah (traditions of the Prophet), Ahadis, Ijma
( interpretations of Muslim scholars )

 Currently the sources of law are– Custom (Articles 244,

244-A, 371-A, the Fifth and Sixth Schedules, Panchayat
(Extension to Scheduled Areas) Act, 1996, The Scheduled
Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006), Legislation (Art 245- 252,Article
 368 ), Precedents (Article 141), International
Treaties/Laws/Conventions/ Foreign Judgments (Art 253)

CUSTOM

Customs originated from the common consciousness of the

people. They came into existence due to necessity or
convenience. With the growth of civilisation, man began to
reason and to reject the unreasonable customs and accepted
reasonable ones.

Features:

 observed uniformly and voluntarily by the people concerned

 Practice by frequent observance (habitual course of

conduct)

 approval and acceptance by the community for generations

 Conviction/faith/belief

Requisites as valid customs

1. Reasonableness – no mischief, norms of equity, justice

good conscience and public utility Mercer v. Denne (1905) 2
Ch. 538.

2. Consistency/ Continuity – not contrary to any Act of

Parliament - Members of the Yorta Aboriginal Community v
Victoria (2002) 214 CLR 422

3. Compulsory Observance- general consensus, as binding

obligation, not a choice - Madhavrao Raghavendra And Ors.
vs Raghavendrarao And Ors.(AIR 1946 Bom 377 )

4. Immemorial Antiquity – no record -Ramakrushna Mohapatra

and ors. Vs. Gangadhar Mohapatra and ors (AIR 1958
Orissa 26)
 5. Certainty – uninterrupted habit, Guruswamy Raja v Perumal
(AIR 1929 Mad. 815)

6. Custom is different from usage. Legal customs cannot be

equated to usage B. Gateppa Vs. B, Eramma and ors
AIR1927Mad228

Types of custom

Types (Explanation)

 A. )Legal Customs: A legal custom is one which possesses

in itself the force of law. These customs operate as a
binding rule of law. A legal custom is one whose legal
authority is absolute and is recognised by the courts. Legal
Customs is divided into two categories:

 i) The General Custom : General Custom is the custom

prevailing throughout the entire realm and not limited to
any locality of the state. Though by the common use of the
term ‘custom’ is meant the ‘local custom’, in law, generally,
the customs which are treated to be the part of the law of
the land are general legal customs.

 ii) Local Customs: By local customs is meant those

customs which apply only to a definite locality of region of
 the realm such as a district, a village, etc. It is custom
proprio vigore, existing irrespectively of any agreement.

 B. )Conventional Customs : A conventional custom is a

practice established by having been followed for a
considerable period of time, and arising out of contract
between the parties, it does not arise out of its own force. A
conventional custom or usage is an established practice
which is legally binding, not because of any legal authority
independently possessed by it, but because it has been
expressly or impliedly incorporated in an agreement. A
conventional custom is so called because it is rooted in
agreement. Its authority is dependent upon prior
acceptance by the parties sought to be bound by it. Usually
a conventional custom is referred to as ‘usage’ and legal
custom as ‘custom simpliciter’

Theories Regarding Transformation of custom into Law

There are two Theories regarding transformation of

custom into law; they are:

Historical Theory

&

Analytical Theory

I. Historical Theory:

According to the theory the growth of law does not depend upon
the arbitrary will of any individual and upon any accident. It
grows as a result of the intelligence of the people. Custom is
derived from the common consciousness of the people which
springs from inner sense right. Law has its existence in the
general will of the people; Savigny gave it the name of
Volkgeist.

II. Analytical Theory:

According to Austin custom is a source of law and not law itself.
A custom becomes law when it is embodied in an act of
legislature or its existence is recognized by the decision of the
courts.

Only those customs are binding or valid which satisfy the judicial
act. A custom is law only because the sovereign allows it to be
so.

Gray considers customs and morality as sources of law

According to Holland customs are not laws unless they are

adopted into laws by state recognition.

Indian Judgments

 Animal Welfare Board of India vs. A. Nagaraja r/w CS to

Government, Tamil Nadu v Animal Welfare Board : The
Indian Supreme Court had struck down he Tamil Nadu
Regulation of Jallikattu Act, 2009, and had banned the
practice altogether along with bullock-cart racing in both
Tamil Nadu and Maharashtra. It was held that all those
customs and practices which are opposed to public morality
are illegal

 Ashok Kumar v. State of Rajasthan 1991 SCC (Cri.) 126

and State v. Iqbal Singh 1991 Cr.L.J. 1897 - a custom of
paying bride-price to the parents of a girl is held to be void

 Mary Roy v State of Kerala 1986 SCR (1) 371 - Syrian

Christian women were entitled to equal share in their
father's property.

 ABC v NCT Delhi - an unwed mother can legally become the

sole guardian of a child.