Theoretical overview
Custom occupies an important place in the regulation of human conduct in almost all societies. In fact, it is one of the oldest sources of lawmaking.
A custom may be defined as a continuing course of conduct which by the acquiescence or express approval of the community observing it, has come to be regarded as fixing the norm of conduct for members of society.
A custom may be broadly defined as a usage observed by the people and recognized by the courts on their fulfillment of certain conditions.
It is a usage observed by a large majority of people as a matter of habit and its continuance has acquired a legally binding force.
Halsbury stated that “custom is some kind of special rule which is in actual existence or possibly followed from time immemorial and which has acquired the force of law in a specified territory, although it may be contrary or inconsistent with the general law of the land”
According to Savigny, the main founder of German historical school, Custom is essentially a product of natural forces associated with the popular spirit of acceptance by the people.
According to Markby “nothing more is necessary for the growth of customs than that people should have some tradition of what their forefathers did before him, that they should repeat the same conduct on similar occasions, and that they should be convinced that what they do is right”.
Customs are not laws when they arise, but they are largely adopted into law by the State recognition.
It is not necessary that courts should always recognize all the practices which are prevalent in a community.
For e.g., there is a practice among the Hindus that the male relatives of the deceased shave off their heads as a mark of condolence, but if a man does not follow this custom, the court is certainly not going to punish him.
On the other hand, there are certain customs that are binding and are enforceable by a court of law since they are backed by the sanction of the state.
For instance, a Hindu marriage solemnized without the performance of Saptapadi is not legally valid and can be set aside by the court.
Essentials of a valid custom
- Reasonableness- A custom must be reasonable. It must be remembered that the authority of prevailing custom is never absolute, but it is authoritative provided it conforms to the norms of justice and public utility. Dr. Allen observed, “The true rule seems to be not that custom will be admitted if reasonable, but that it will be admitted unless it is unreasonable.
- Consistency- A custom to be valid must be in conformity with statute law. In other words, it should not be contrary to an Act of Parliament.
- Antiquity – A custom to be recognized as law must be proved to be in existence from the time immemorial, time whereof the memory of man is not contrary. This is often the rule of the English Law. This legal memory presumes to be going back to a fixed time. English law fixed 1189 to test antiquity of a custom. But the presumption of law is that the customs which are old and whose time origin cannot be ascertained must have started before the year 1189.
- Continuance: The second essential of a custom is that it must have been practiced endlessly. In England, the custom during the period from 1189 must have been enjoyed continuously without any interruption. Continuity doesn’t mean that should not be operating all the time. There should always be available in terms of availability of custom to deal with rule of conduct. It means that if possession for a few times is disturbed, however the claim to enjoy the custom is not abandoned, the custom continues.
- Peaceable enjoyment: The custom must have been enjoyed peaceably. If a custom is relevant for a long time in a law court, or otherwise, it negatives the presumption that it originated by consent as most of the customs naturally might need to originate.
- Obligatory force: The custom should have an obligatory force. It must have been supported by the general public opinion and enjoyed as a matter of right.
- Certainty: A custom is certain. A custom that is obscure or indefinite cannot be recognized. It is more a rule of evidence than anything else. The court must be satisfied by clear proof that custom exists as a matter of truth, or as a legal presumption of fact.
Points to remember
- It is one of the oldest sources of lawmaking.
- custom is some kind of special rule which is in actual existence or possibly followed from time immemorial and which has acquired the force of law in a specified territory, although it may be contrary or inconsistent with the general law of the land”
- A Hindu marriage solemnized without the performance of Saptapadi is not legally valid and can be set aside by the court
