In practically all communities, custom plays a significant role in regulating
human behaviour. It is, in reality, one of the earliest sources of legal
authority. However, as society progresses, customs fade away, and laws and legal
precedents become the primary source of information. People develop custom by
unconsciously adopting a given code of conduct whenever the same problem arises,
and its authority is founded on nothing more than the people's long-term use and
acceptance of it.
Custom is a type of particular norm that has been followed since the dawn of
time. Customary law is a type of law that is founded on custom. Custom, as a
source of law, involves the study of a number of its aspects: its origin and
nature, its importance, reasons for its recognition, its classification, its
various theories, its distinction with prescription and usage, and the
essentials of a valid custom.
Definitions of Customs as per different thinkers (Jurists)
According to Salmond:
custom is the exemplification of those standards which have complimented
themselves to the national still, small voice as standards of equity and open
According to Austin:
custom is a standard of direct which the sovereign watch suddenly and not in the
compatibility of law set by a political superior.
According to Keeton:
Customary law may be defined as those rules of human action established by usage
and regarded as legally binding by those to whom the rules are applicable, which
are adopted by the courts and applied as source of law, because they are
generally followed by the political society as a whole, or by some part of it.
According to Halsbury law:
A custom is a specific principle which has existed either really or
hypothetically from time immemorial and has received the power of law in a
specific territory, though in spite of or not steady with the general
precedent-based law of the community.
Essentials of a valid legal custom
Certain tests or essentials have been laid down by the jurists which a custom
must satisfy for its judicial recognition. Some of the essentials of a valid
A custom to be recognized as law must be proved to be in existence from time
immemorial. In India it has been said that a custom must be of old nature, but
there is no such fixed period for which it must have been in existence as it is
in the English law. The reason for not enforcing a modern custom is that
otherwise so many of the novel customs would become law. The law adopts
sufficient methods of protection against the development of vexatious acceptance
of modern customs.
It must have been practised continuously. If a custom is disturbed for a
considerable time, a presumption arises against it. t if a custom has not been
followed continuously and uninterruptedly for a long time, the presumption is
that it never existed at all. It must have been in existence and recognized by
the community without any intervening break, for such duration as may, under the
circumstances of the case, be recognized as reasonably long. In case of
Muhammad Hussainforki v. Syed Mian Saheb
 ,it was held that unless there
is continuity there is no custom.
It is necessary for a tradition to be reasonable. It will have to be
demonstrated that a custom is plainly adverse to reason in order to declare it
inapplicable on the basis of unreasonableness. It cannot be irrational. It must
be beneficial and practical to society. If a party challenges a custom, it must
show that the custom is irrational to the court.
That is, the individual challenging the custom bears the burden of proof. Our
present understanding of suitability should not be used to determine
reasonableness. When a custom is not in conflict with a fundamental tenet of
morality, the law of the state in which it exists, or principles of justice,
equity, and good conscience, it should be considered adequately reasonable.
Conformity with statute law:
A custom, to be valid, must be in conformity with statute law. It is a positive
rule in most of the legal systems that a statute can abrogate a custom.
Observance as of right It must have been observed as of right. Mere practice of
a voluntarily nature would not make a custom valid. It must have been followed
openly not stealthily, and without the necessity for the recourse to force. To
use the expression of Salmond, there must be opinio necessitatis , that is, the
conviction on the part of those who use a custom that it is obligatory ands not
Consistency: Other established customs must not be in conflict with custom.
There must be a conflict with the other custom. The only way to tell if a custom
is valid is if it complies with the law. It should not be in violation of the
law. When a custom disagrees with a statutory law, it must be followed. This
rule is regarded as a positive legal concept in England and other nations that
follow English law, such as India. 
Role Played by Customary law in Modern Hindu Law in India.
Custom plays a significant part in Hindu law and is accepted as part of the
Indian legal system. Section 2(2) of the Hindu Marriage Act and the Hindu
Succession Act have left the door open for the recognition of tribal customary
laws and practices of Scheduled Tribes.
Indian law recognises customary Hindu practises in marriage and divorce that
differ from the traditional norm. In a large country like India, with so many
castes residing in so many different regions, custom has allowed for a wide
range of marriage arrangements. These traditional marital arrangements may be
totally legal. Some ceremonies, according to Hindu law, are absolutely
For example: courts have placed a high value on the performance of Saptapathi,
or the seven-step ceremony, which is regarded as the most important of all
However, it should be noted that the performance of ceremonies other than those
referred to above are recognized by the Indian Courts where the ceremonies are
allowed by the custom of the community or caste to which the parties belong.
Divorce is not recognized by general Hindu law. Traditionally marriage, from
the Hindu legal standpoint, creates an indissoluble tie between the husband and
Neither party, therefore, to a marriage can divorce the other unless
divorce is allowed by custom.The Hindu Marriage Act modified this position,
however, creating nine grounds for both husband and wife to claim divorce, and
some additional grounds available to the wife alone. According to section 29 of
the Hindu Marriage Act, dissolution of a Hindu marriage can also be obtained
through a valid custom.
Essentiality of Customs in Modern and Present Indian Laws
When the courts in India recognised customary rights based on long usage, they
become customary laws. These customary laws were the creation of Indian courts.
However, customary rights were recognised as early as 1872, when the Indian
Evidence Act was enacted. Section 13 of the act deals with the facts relevant
for the proof of customary law. The Indian Forest Act 1927, under Sections 12 to
16 recognises rights to pasture and forest produce at the stage of settling
rights before a given area of forest is classified as reserve forest. These
rights are, no doubt customary rights. But these rights were seldom transformed
into customary rights in the field.
The reasons were twofold. Either the forest
dependant communities were ignorant about their rights or the settlement
officers, with their narrow and rigid pre-establishment mindset, were not
inclined to grant such rights to the people. However, it should be admitted that
the early colonial legislations enacted over a century ago did recognise
customary rights, though such legislations were very few.
The Constitution of
India, under Article 13, treats customary law along with other branches of civil
law. A custom or usage if proved would be law in force under this article. These
customary rights having the force of law can be taken judicial notice by courts
under Section 57 of the Indian Evidence Act 1872. Community level customary laws
evolved out of area-specific traditional usage and practice. Hence they reflect
the cultural ethos and traditions of the local people. These practices helped
the local communities to be self-reliant and self sufficient, since their needs
Courts on validity of customary laws prevailing in India.
In an important judgement on application of customs in the matter of family law,
the Supreme Court in the case of Smt. Ass Kaur (Deceased) By L.Rs vs Kartar
Singh (Dead) By L.Rs. & Ors
 has held that the customary law will prevail over
the statutory law in cases where the legislation is silent on the issue. "As
statutory law did not exclude the applicability of the customary law, the
customary law would prevail over the statutory law, Bench comprising Justice S B Sinha and Justice Markandey Katju said in a judgement.
The Bench also brushed
aside the contention raised during the argument that validity of customs must be
judged on the touchstone of justice, equity and good conscience. It is one
thing to say that customary law had no application or the custom had not been
proved and quite another to say that despite its acceptence and proof, the same
should not be applied on the ground of equity, justice, and good conscience.
The Court said:
If the intention of the makers of the statute in the 1929 Act
was to completely exclude the applicability of the customary law, it would have
been said so explicitly."
Sabarimala Verdict: A Conflict of Customs and Law
The Supreme Court of India in Indian Young Lawyers' Association v. State of
.The judiciary has demonstrated how unregulated customs and
traditions can result in grave injustice to a particular social group, and why
the rule of law has precedence over such behaviours. As proponents of the rule
of law and libertarian principles, we applaud and admire the Court's majority
ruling in this case. The ban on women aged 10 to 50 entering the mediaeval
shrine of Sabarimala in Kerala was abolished by the Supreme Court.
The times are swiftly changing, and the advancement of civilization and culture,
aesthetic sensibility, ethical principles, and humanitarian sympathies cannot be
facilitated by relying on customary norms and disregarding the rule of law's
sanctity. Customary rules emerged from the haze of ambiguity, mystery,
uncertainty, and changeability that had surrounded them for so long. Law serves
a critical role in the maintenance of societies and is an integral aspect of the
Law develops with the rise of the people, strengthens with their strength, and
then fades away as the nation loses its nationality.. So, any unfair law like
customs shall stand on the defective part and will drive the nation to the state
of losing its individuality and will suffocate itself unless it dies in the
hands of confiscated judiciary. Hence, it is a conclusive statement that
customary law should have only persuasive value and shall not prevail as a law
The Landmark Decision in Jallikattu Sports Case
The Supreme Court in Animal Welfare Board of India v. A. Nagaraja
adopted a similar approach and imposed a ban on Jallikattu: When they prohibited
the use of bulls in Jallikattu, they broadened the concept of justice to include
not just humans but also animals.
Men were expected to tame an agitated bull, harming themselves as well as the
animal, in the famed bull-taming festival. In fact, by custom, only upper caste
men were allowed to participate, discriminating against the lower castes. Many
lives were lost in this celebration of brutality in the name of sport and
entertainment, including those of animals, participants, and even spectators.
The court ruled that this custom resulted in severe violations of the constitutional
of the animals mentioned in Article 51-A (g)(vii) and (h)(viii),
which form a part of the Fundamental Duties to be fulfilled by the citizens.
They held the view the view that such customs promoted cruelty and other unjust
practices in the name of sports.
The customs were the most important, and in some cases, the only source of law,
during the early times of the general public. The customs are based on the
construction of a completely legal and acceptable framework. They appear when
the general public is present. In terms of primitive society, custom is a
continuous activity. A custom is a standard or practise that has been followed
by the general public from the dawn of time. Customs are encouraged, merged, and
exemplified in legal standards. In any lawful and legal system, the effects of
custom can be observed. Custom is a valid and authoritative source of law but
the only condition is that it must be valid and a lawful custom. However, with
the advent of colonial rule and introduction of formal legislative laws,
customary regulations gradually receded to the background.
Written By: Manglam Srivastava
(Visited on June 8, 2021)
- https://blog.ipleaders.in/customs-source-law/amp/ (Visited on June 8,
- (1942) 1 MLJ 564
(Visited on June 8, 2021)
- https://www.gktoday.in/topic/custom-in-jurisprudence/ (Visited on June
- https://www.loc.gov/law/help/customary-law/india.php (Visited on June 8,
(Visited on June 8, 2021
- Appeal (civil) 12395 of 1996
(Visited on June 8, 2021)
- 2018 S.C.C. OnLine S.C. 1690.
(Visited on June 8, 2021)
- (2014) 7 S.C.C. 547.
(Visited on June 8, 2021)
- Student of Faculty of Law, Aligarh
Muslim University (AMU)