Sources of Law

According to our Constitution, Article 13 in

The Constitution Of India, Law includes:

 Ordinance,
 order,
 bye-law,
 rule,
 regulation,
 notification,
 custom or usages having in the territory of India the force of law
Sources of Law (Fons Juris)

 According to Austin, the term ‘source of law’ is used in three senses;

i. Authority from which law emanates (Immediate source)
ii. Historical material from which the existence of law is known
iii. Causes which give rules of society force of law
 According to Salmond, the source of law can be divided into Material source
of Law (legal and historical) and Formal source of Law.
 According to Ketone, the source of law can be divided into Binding and
Persuasive.
What is Custom?

 Salmond says “Custom is the embodiment of those principles which have

commended themselves to the national conscience as principles of justice and
public utility.”
 C.K. Allen defines custom as “a legal and social phenomenon growing up by
forces inherent in society—forces partly of reason and necessity, and partly of
suggestion and imitation.”
 According to Austin “Custom is a rule of conduct which the governed observe
spontaneously and not in pursuance of law settled by a political superior.”
Why custom is a major source of Law?
Reasons for the recognition of Customs
as Law.

Necessity
 In primitive societies, in the absence of
codes, local customs were the only
available guides.
 Strong belief and acceptance
 Supernatural and divine sanctions
 Society has already built up
expectations and to ignore customs
would be an injustice.
 They're primarily common consciousness
of people and therefore they should be
accepted by the court as an
authoritative guide.
Convenience
 Trusted material out of which
law can be extracted.
 Easier to secure reverence for
a code if it claims to be based
on a custom
 What has been followed in the
past is a safe guide for the
future.
 comfortable
Kinds of Customs
Essentials of a valid custom.

 Immemorial antiquity
 Continuous
 Reasonablity
 Certainity
 Consistency
 Conformity with statute law
 Peacable enjoyment
 Must not be against Public Policy
Essentials of a valid custom

 Not to be immoral
 Must have an obligatory force
 Must be followed as a matter of right
Therefore in simple words:

Custom is a habitual course of conduct or

long-established practices followed
voluntarily and uniformly and which have
acquired binding force or obligatory
character.
Guru swami Raja vs Perumal

 Ambiguity is never appreciated in the legal field and hence custom should have been
observed continuously and uninterruptedly with certainty and this needs to be proven
beyond a reasonable doubt.

 The plaintiff claimed the customary right of easement for the shadow falling from the
branches of the tree hanging from the neighbor’s field.
 It was held that there cannot be custom related to the shadow of trees since it is
ambiguous, uncertain, and transitory and therefore it cannot give right to any customary
right.
Few cases

 In India, it just needs to be from ancient time and can be existing in the
memory of humans in the case of Baba Narayan v. Saboosa, it was observed
that though the customs need not be immemorial but it has to be continuous
to be valid.
 Likewise, other cases that did shed light upon the essence of legal
enforceability of customs are Keshav Hargovan v. Bai
Gandi(morality),Muhammad Hussain Faroki v. Syed Mian Saheb
(Continuity), and Mohammad Baqar and Ors. v. Naim-Un-Nisa Bibi
(Compliance with existing statutes).
Sec.10 of Hindu Adoption and Maintenance Act, 1956
which is as follows: –

Persons who may be adopted.—No person shall be capable of being taken in

adoption unless the following conditions are fulfilled, namely:— ….
 (iii) He or she has not been married, unless there is a custom or usage
applicable to the parties which permits persons who are married being taken
in adoption;
 (iv)He or she has not completed the age of fifteen years, unless there is a
custom or usage applicable to the partie
Sec. 5 of Hindu Marriage Act, 1955 which is as
follows: –

Conditions for a Hindu marriage: – a marriage may be solemnized between any

two Hindus, if the following conditions are fulfilled, namely: –— ….
(iv) the parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other unless the custom or usage
governing each of them permits of a marriage between th
Indian Contract Act, 1872

Sec.1. Short title.—This Act may be called the Indian Contract Act, 1872. —This Act may
be called the Indian Contract Act, 1872.”
Extent, Commencement.—It extends to the whole of India 1 [except the State of Jammu
and Kashmir]; and it shall come into force on the first day of September, 1872.
Saving:- Nothing herein contained shall affect the provisions of any Statute, Act or
Regulation not hereby expressly repealed, nor any usage or custom of trade, nor any
incident of any contract, not inconsistent with the provisions of this act.