Custom as a Source of Law

1. Austin: Custom is a rule of conduct that the governed observe spontaneously, and not because a political superior has made it law. For him, a custom becomes law only when the State recognises it and the courts enforce it. Until then, it is only a moral or social rule.
2. The definitions show that mere usage is not law. It must be accepted as legally binding.

1. Custom arises spontaneously. It is not made on purpose.
2. Custom grows slowly over time.
3. Custom rests on popular acceptance and social need.
4. Custom becomes law only when the State recognises it and the courts enforce it.
5. Custom therefore reflects the collective experience of society.

1. Custom begins with repeated conduct in similar situations. When people follow the conduct uniformly, continuously and peacefully for a long time, it becomes a habit.
2. The habit gradually becomes a sense of obligation. People begin to believe that they ought to follow it.
3. When courts accept the practice as reasonable, certain and just, it becomes legal custom. Custom thus grows from social practice, to moral obligation, to legal obligation.

1. It reflects the real needs and beliefs of society.
2. It has the support of public opinion.
3. It gives certainty and stability to social relations.
4. It develops law in a natural and evolutionary way.
5. It fills gaps where legislation is silent.
6. Courts therefore respect customs, unless they are unjust or opposed to law. In Collector of Madura v. Moottoo Ramalinga Sathupathy (Privy Council, 1868), the Privy Council held that clear proof of a usage can outweigh the written text of the law.

Customs recognised by law fall into two groups, legal custom and conventional custom.

Legal Custom

Legal customs operate independently of any agreement, and they have the force of law by themselves. They are of two types.

1. Local customs: They apply in a particular area and bind only the people of that area. A customary right of villagers to graze cattle on certain land in a village is an example. Section 18 of the Indian Easements Act, 1882 recognises such customary easements. A local custom must be strictly proved in court. In Hurpurshad v. Sheo Dyal (Privy Council, 1876), the Privy Council said that a person who relies on a custom must prove it clearly.
2. General customs: They apply to a large section of the community or to the whole country, and they form part of the general law. Customs that form part of Hindu personal law are an example.

Conventional Custom

1. Conventional customs get their binding force from the agreement of the parties. They bind only the parties who accept them. Customs of trade and commerce, customs of merchants, and customs written into contracts are examples.

A custom must satisfy eight conditions to be recognised as law.

1. Antiquity: The custom must be ancient. In English law, legal memory goes back to 1189, the year of the accession of Richard I, a date that the Statute of Westminster of 1275 fixed. In India, a custom must be immemorial, which means that its origin cannot be traced within living memory.
2. Continuity: The custom must have been observed without a break. If it is abandoned for a long time, it loses its legal force.
3. Peaceful enjoyment: The custom must have been enjoyed peacefully and without opposition. If the enjoyment has often been disputed, courts may refuse to recognise it.
4. Certainty: The custom must be clear and definite. In Guruswami Raja v. Perumal Raja (1925), the court refused to recognise a customary right to shade from overhanging trees, because the extent of the shade was uncertain.
5. Reasonableness: The custom must be reasonable. An unreasonable or oppressive custom cannot be law. In Produce Brokers Co. v. Olympia Oil & Cake Co. (1916), the court held that a custom is reasonable if an honest and fair-minded person would accept it. In Ramalakshmi Ammal v. Sivanatha Perumal Pillai (Privy Council, 1872), the Privy Council held that a custom must be ancient, certain and reasonable.
6. Consistency: The custom must not conflict with other customs. Where two customs conflict, courts refuse to recognise either.
7. Conformity with statute: The custom must not be opposed to a statute. Sati was ended by the Bengal Sati Regulation, 1829, and later by the Sati (Prevention) Act, 1987. Child marriage is dealt with by the Prohibition of Child Marriage Act, 2006, which replaced the Child Marriage Restraint Act, 1929. Customs that conflicted with these laws lost their legal force. Under Section 4 of the Hindu Succession Act, 1956, any custom that formed part of Hindu law, and that covers a matter that the Act provides for, ceased to have effect.
8. Conformity with morality: The custom must not be immoral or against public policy. A custom that encourages the prostitution of minors is void, and the Immoral Traffic (Prevention) Act, 1956 punishes such acts.

1. According to Austin, a custom becomes law only when the State recognises it and the courts enforce it. Until then, it is a moral or social rule.
2. Judicial recognition is therefore essential. It changes custom from a social habit into a legal rule.
3. A custom must also pass the Constitution. Article 13(3)(a) treats a custom or usage with the force of law as "law". It can therefore be struck down if it violates fundamental rights. In Shayara Bano v. Union of India (2017), the Supreme Court held that instant triple talaq was unconstitutional, though it was a long-followed practice.

1. Custom still has a place in personal and local law. Section 3(a) of the Hindu Marriage Act, 1955 defines "custom and usage". It means a rule that has been continuously and uniformly observed for a long time, has the force of law among Hindus in a local area, tribe, community, group or family, and is certain and not unreasonable or opposed to public policy. A rule that applies only to a family must also not have been discontinued by the family.
2. Tribal customs are protected in many areas. The Hindu Marriage Act does not apply to members of Scheduled Tribes unless the Central Government says so, and the Sixth Schedule protects customary laws in tribal areas. In Madhu Kishwar v. State of Bihar (1996), the Supreme Court did not strike down tribal customs of male succession, though it directed that tribal women be protected in other ways.

1. Custom played a vital part in the early growth of law.
2. It forms the base of personal laws.
3. It helps law adapt to social realities.
4. It fills gaps in legislation.
5. In modern times, its importance is declining. Legislation and constitutional supremacy now dominate.

Custom is one of the oldest sources of law, and it still influences modern legal systems. It represents the social consciousness of the people and gives law flexibility. Its importance has fallen with the rise of legislation, but it keeps its significance in personal and local laws. Custom therefore remains a foundational and historical source of law that has shaped the growth of legal systems.