A custom is a long drawn, ancient, uniform, definite
continuous and compulsory usage or practice which has been
accepted followed and recognised by the members of
community or religion interested in it. The custom has the
effect of modifying the general personal law. But it does not
override the statutory law unless the custom is expressly
saved by it. No custom is valid if it is illegal, immoral,
unreasonable or opposed to the public policy. The custom
being in derogation of the general law, is required to be
construed strictly. The party relying upon the custom is
obliged to establish it by way of clear and unambiguous
evidence. The evidence adduced on behalf of the party
concerned, must prove the alleged custom and the proof must
not be unsatisfactory or conflicting. A custom cannot be
extended by analogy or logical process and it also cannot be
established by a priori method. The decision of the Apex Court
in the case of Laximibai v. Bhagwantbuva [(2013) 4 SCC 97]
throws light on the aforesaid proposition. A claim for
customary or traditional right in rem to perform the religious
rites and rituals to the exclusion of any interference by others,
as has been claimed in the present suit, carries with it a heavy
burden of proof.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 937 OF 2007
Yeshwant Balwant Badave
VERSUS.
Shri. Yogi Rajendra Shivacharya Guru
Coram : Ravi K. Deshpande, J.
Date of pronouncement of judgment: July 17, 2014.
Citation;2015(2) MHLJ291
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continuous and compulsory usage or practice which has been
accepted followed and recognised by the members of
community or religion interested in it. The custom has the
effect of modifying the general personal law. But it does not
override the statutory law unless the custom is expressly
saved by it. No custom is valid if it is illegal, immoral,
unreasonable or opposed to the public policy. The custom
being in derogation of the general law, is required to be
construed strictly. The party relying upon the custom is
obliged to establish it by way of clear and unambiguous
evidence. The evidence adduced on behalf of the party
concerned, must prove the alleged custom and the proof must
not be unsatisfactory or conflicting. A custom cannot be
extended by analogy or logical process and it also cannot be
established by a priori method. The decision of the Apex Court
in the case of Laximibai v. Bhagwantbuva [(2013) 4 SCC 97]
throws light on the aforesaid proposition. A claim for
customary or traditional right in rem to perform the religious
rites and rituals to the exclusion of any interference by others,
as has been claimed in the present suit, carries with it a heavy
burden of proof.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 937 OF 2007
Yeshwant Balwant Badave
VERSUS.
Shri. Yogi Rajendra Shivacharya Guru
Coram : Ravi K. Deshpande, J.
Date of pronouncement of judgment: July 17, 2014.
Citation;2015(2) MHLJ291
