Custom as a source of Law

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law

A---Custom without sanction—DEATH BHOJ, WEARING WHITE DRESS-SOCIAL

CUSTOM-X
B---Custom having sanction.-YES
B 1--Legal Custom, yes
B 2-Conventional Custom.—XXXXX(USAGE)
B1-aGeneral Custom( YES) (SAPTPADI)
B1- b. Local Custom.(XXX-LESS APPLIED)
GENERAL CUSTOM- CUSTOM APPLICABLE TO ALL

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
General understanding
It is long established practice considered as unwritten law

It is a tradition coming from one generation to another.

It means established way of doing things.

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
Law Lexicon-custom established by a long usage, and the consent of our ancestors.

According to Austin, “custom is a rule of conduct which the is observed

spontaneously and not in a pursuance of law set by a political superior

Holland: - custom as “a generally observed course of conduct’.”

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
CUSTOM AND USAGE: A DISTINCTION
A conventional custom ( usage) does not possess absolute authority , Legal Custom has
authority
A custom is binding irrespective of the consent of the parties, not the case with usage
Conventional custom arrives out of agreement between the parties. (just like ICJ judgement)
A custom to be valid should have been in existence from time immemorial but it is not so in
case of a usage

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
SOME EXAMPLES
TRIPLE TALAQ-x
SATI SYSTEM-X
CHILD MARIAGE-X
Kharcha-e-pandan/pocket money-yes
Khhula as a mode of divorce-yes

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
WHY WE ARE DISCUSSING THIS?
MARRIAGE-SEVEN STEPS ROUND THE FIRE, WHAT IF CUSTOM SAYS 5
STEPS
ADOPTION OF CHILD-AGE IS 15 YRS-WHAT ABOUT 51 YR OLD IS BEING
ADOPTED-NO PROBLEM- CUSTOM SHOULD BE
DIVORCE-KHHULA

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
Each and every custom cannot be legally enforced

Custom to be legally recognized by the courts and acquire the binding force of law
evolved some judicial tests…

ESSENTIALS OF A VALID CUSTOM

Custom must be Ancient-The term ‘ancient’ is equivalent to the expression ‘from

time immemorial

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
Custom is immemorial when its origin was so ancient that the beginning of it is
beyond human memory…

In India, there is no such fixed date or technical rule to determine antiquity of a

custom.

It will depend upon the circumstances of each case.

The courts are free to decide the question upon the facts of each case(100 yr-OK)
Section 3(a) of the Hindu Marriage Act, 1955 lays down that custom to be valid
must have been observed for a ‘long time’

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
Custom must be Uniform and Continuous
it follows that it must be uniform (and not variable), definite and continuous``

If there is discontinuance, such discontinuance destroys its stability.

It is immaterial whether such discontinuance was accidental or intentional

Custom must be consistent with each other.

Two contradictory customs cannot exist in the same place with reference to the
same people.(Opening window in someone,s house, opposite to it)

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
Custom must be Certain
Custom must be certain in respect of (i) its nature; (ii) its locality; and (iii) the persons whom
it is alleged to affect
Eg –From contract Law- contract for 100 L oil

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
Custom must be Consciously Accepted as of Right
Concept of Opeino necessatis
Conviction on the part of the members of the community that a custom is legally binding
According to Bodenheimer, custom must be accompanied by the opinio juris or opinio
necessitatis

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
Custom must be Reasonable

What is reasonable or unreasonable is a matter of social values.

It may differ from time to time, from place to place

The unreasonableness of a custom in modern circumstances will not affect its validity if the
court is satisfied of a reasonable origin.

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
 Custom as a source of Law
It should not be Opposed to Morality
A custom, to be valid, must not be immoral.
no fixed test or strait jacket formula to judge the morality of a custom
The question what customs are ‘immoral’ must be left to the conscience of the
court.
It should not be Opposed to Public Policy
It should not be Opposed to Express Enactment

MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence