Thursday 7 December 2023

Notes on applicability of custom in Indian law

 Definition of Custom: 

As per S 3 of Hindu Marriage Act, 
  1. the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

Custom, in the context of law, refers to a long-established practice or rule of conduct that has gained the force of law within a particular society or community. It is a source of law that complements statutory law. Customs are often unwritten and transmitted orally from generation to generation, but they can also be found in written records, such as ancient texts or court decisions.

Custom, in the context of law, refers to a practice or tradition that has developed within a particular community or group over an extended period of time and is recognized as a source of law. Customary law is an essential part of legal systems in many societies and often supplements written laws and statutes. Customs can vary from one community to another and are often based on long-standing traditions and usages.

Kinds of Customs: Customs can be classified into two main categories:

  • Local Customs: These customs are specific to a particular locality, region, or community. They are limited in their application to that specific area or group.

  • General Customs: These customs are recognized and practiced more widely, often extending beyond a single community or locality. General customs are more universally accepted and adhered to within a larger region or society.

  • Family customs: These customs are specific to a particular family or clan.

  • Class or caste customs: These customs are associated with a particular social class or caste.

Essentials of a Valid Custom: For a custom to be recognized as a valid source of law, it must typically meet certain essential criteria:

  • 1) Antiquity or ancient : The custom should have been in existence for a long period of time. It should be a well-established and continuous practice.

  • 2) Consistency : The custom should be consistently followed by the community or group that recognizes it. It should be uniform in its observance.

  • 3) Reasonableness: The custom should not be in conflict with any existing laws or principles of morality and should be considered reasonable.

  • 4) Certainty: The custom must be clear and definite in its terms, leaving no room for ambiguity or misinterpretation.

  • 5) Conformity with Positive Law: The custom should not be in contradiction with written laws, statutes, or constitutional provisions. If there is a conflict, the written law typically prevails.

Burden of Proof of a Custom: The burden of proving the existence and validity of a custom rests on the party relying on the custom. In a legal case, if a party wishes to rely on a custom as a source of law, they must provide evidence to establish that the custom exists and is valid, and is relevant to the case. It is the duty of the party invoking the custom to prove its existence and applicability.

When Custom Need Not Be Proved: There are situations where customs need not be proved, and they are presumed to exist or apply. These circumstances include:

  • Judicial Notice: Courts may take judicial notice of customs that are widely known and acknowledged within the jurisdiction, particularly those that are common, general, and have been consistently followed over a long time.

  • Statutory Recognition: In some legal systems, certain customs are codified and recognized by statute. In such cases, there is no need to prove the custom's existence because it is already established by law.

1. Indian Law and Custom:

In Indian law, customs are recognized as a legitimate source of law.. The Indian Evidence Act, 1872, provides for the recognition of customs as a relevant fact. Section 13 of the Evidence Act states that facts relevant when a custom is in question. The burden of proving a custom lies on the party who asserts its existence.

The courts in India consider customs as an integral part of the legal system, and if the essential elements are satisfied, customs may be enforced as law. However, the courts also require strict proof of the existence and nature of the custom before accepting it as a valid source of law.

2. Recognition of Custom:

While statutes provide a comprehensive legal framework, they also recognize the importance of customs and usages. Section 3 of the Hindu Marriage Act provides definition of custom.

3. Restrictions on Custom:

While recognizing the importance of customs, there are limitations imposed by codified Hindu law. Customs that are inconsistent with the statutory provisions or principles of justice, equity, and good conscience may not be accepted. The laws aim to strike a balance between preserving traditional practices and ensuring fairness and equality.

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