Custom as a Source of Law
Chapter Five
Syllabus topic 1, "Law and Social Change". MU set "Customs as the source of law, Explain" as a three-mark question.
Pages 22 to 25 of 768
In one line
A custom is a practice that a community has followed for so long, and so consistently, that the law treats it as binding without anybody ever having enacted it.
In the wording a student can write in an exam: custom is the oldest source of law and, in the classification used by jurists, a formal source that requires no act of a sovereign. A practice becomes a legally recognised custom when it satisfies certain tests, which Indian statutes and courts state as antiquity, continuity, uniformity of observance, certainty, reasonableness, obligatory force, and consistency with statute law and public policy. Section 3(a) of the Hindu Marriage Act 1955 puts most of those tests into statutory form. Custom is the point at which the historical school's account of law becomes operative law, and it is also the point at which the Constitution's reform provisions collide with tradition, because article 13(3)(a) defines "law" to include custom or usage having the force of law.
Why custom is a source at all
Because a rule that everybody already follows does not need to be enacted. Long before there were legislatures, disputes were settled by asking what was done in such cases, and the answer became the rule.
Because the alternative is a legal vacuum. In a society with plural communities and one legislature, a great deal of ordinary life is governed by practice rather than statute, and a court that refused to recognise practice would have nothing to apply.
And because the legislature has said so. Indian statutes repeatedly preserve custom expressly, which means the recognition is not merely judicial tolerance but legislative policy.
The tests, one by one
Antiquity. The practice must be ancient. English law fixed a date, the year 1189, which Indian law has never adopted; here the requirement is only that the practice be of long standing.
Continuity. It must have been observed without interruption. An interruption in the observance destroys the custom, because it shows that the community did not regard it as obligatory.
Uniformity and certainty. It must be observed in the same way and its content must be capable of being stated. A practice that varies from family to family in the same community is not a custom; it is a habit.
Obligatory force. It must be followed because it is regarded as binding, and not merely because it is convenient or usual. This is the test that separates a custom from a fashion.
Reasonableness. It must not be unreasonable. This is where a court's own judgment enters, and where most custom cases are actually decided.
Consistency with statute and public policy. A custom contrary to an express statutory provision is displaced by the statute, and a custom opposed to public policy or morality is not enforced whatever its antiquity.
Custom as a Source of Law
Peaceable enjoyment. The practice must have been enjoyed without dispute. A practice that has been repeatedly contested has not become settled.
The statutory definition, from the Act itself
Section 3(a) of the Hindu Marriage Act 1955 is the model, and it should be quoted. 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.
Read what that packs in. Continuity, uniformity, antiquity, the force of law, certainty, reasonableness, public policy, and the family-custom proviso, all in one subsection. Six of the seven common law tests are there.
Note the units it recognises. A local area, a tribe, a community, a group, or a family. A custom in Indian law need not be territorial; it can attach to a caste or even to a single family.
Where the Act then uses custom
Section 7: ceremonies. A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. Where such rites include the saptapadi, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.
Section 5(iv) and 5(v): prohibited relationships and sapinda relationship. The parties must not be within the degrees of prohibited relationship, and must not be sapindas of each other, unless the custom or usage governing each of them permits a marriage between the two.
Section 29(2): a saving. Nothing contained in the Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of the Act.
Put those together and the picture is clear. The Act supplies a uniform frame and lets custom fill in the ceremony, widen the prohibited degrees, and preserve a customary divorce. That is legislation working with the historical school rather than against it.
Custom, article 13 and the reform problem
Article 13(3)(a) defines "law" for the purposes of Part III as including any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. So a custom having the force of law is "law", and a custom inconsistent with a fundamental right is void to the extent of the inconsistency.
Custom as a Source of Law
That is the doorway through which reform enters. A community may not defend an excluding practice by saying that it is custom, because a custom having the force of law is subject to Part III like any other law.
But the doorway has a much argued edge. Whether uncodified personal law is "custom or usage having the force of law" within article 13(3)(a), and so open to challenge under Part III, is the question dealt with in [Personal Law: What It Is, and Why India Has Several]. It is the single most contested point in the religion topic.
A worked example
Kavita and Rohit belong to a community in which a marriage may be dissolved by an agreement in writing before the caste panchayat, and this has been so for as long as anybody can remember. Kavita's father produces a deed of divorce from twenty years earlier in the same family.
Step one: is there a custom? It must be shown to be ancient, continuous, uniform, certain, obligatory, reasonable, and not opposed to public policy. Custom is a question of fact and must be pleaded and proved by the party who asserts it; it is not judicially noticed.
Step two: does the Act save it? Section 29(2) preserves any right recognised by custom to obtain the dissolution of a Hindu marriage, so a proved customary divorce survives the Act.
Step three: is it consistent with the Constitution? If the custom permitted the husband to dissolve the marriage at will and gave the wife no corresponding right, it would have to answer article 14 and article 15(1) through article 13(3)(a).
Step four, which students forget: who proves it? Kavita's father. A single deed from one family twenty years ago is evidence of an instance, not proof of a custom, and the burden of establishing all seven tests is on him.
What this does NOT mean
It does not mean that anything old is a custom. Antiquity is one test of seven, and the two that defeat most claims are certainty and reasonableness.
It does not mean a custom prevails over a statute. It yields to an express statutory provision. Where a statute preserves it, as sections 7 and 29(2) do, it operates because the statute allows it to.
And it does not mean custom is a merely historical curiosity. It decides live questions about who may marry whom, what ceremonies validate a marriage, and whether a divorce outside a court is recognised.
Quick revision
Custom is the oldest source of law. Seven tests: antiquity, continuity, uniformity and certainty, obligatory force, reasonableness, consistency with statute and public policy, and peaceable enjoyment. Section 3(a) of the Hindu Marriage Act 1955 packs six of them into one subsection and recognises customs of a local area, tribe, community, group or family. Section 7 lets custom supply the ceremonies, including saptapadi; section 5(iv) and (v) let it permit a marriage otherwise prohibited; section 29(2) preserves a customary divorce. Article 13(3)(a) makes a custom having the force of law "law" for Part III, which is how reform reaches it. Custom is a question of fact and must be pleaded and proved.
Custom as a Source of Law
Test yourself
1. Give the statutory definition of custom in Indian law. Section 3(a) of the Hindu Marriage Act 1955: a 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 it is certain and not unreasonable or opposed to public policy, and provided that a family custom has not been discontinued by the family.
2. List the tests a custom must satisfy. Antiquity, continuity, uniformity and certainty, obligatory force, reasonableness, consistency with statute law and public policy, and peaceable enjoyment.
3. Name three sections of the Hindu Marriage Act that give custom operative effect. Section 7, customary rites and ceremonies including saptapadi; section 5(iv) and (v), where custom permits a marriage within the prohibited degrees or between sapindas; and section 29(2), which saves a customary right to obtain dissolution of the marriage.
4. How does the Constitution reach a custom? Through article 13(3)(a), which includes custom or usage having the force of law within the definition of "law", so that a custom inconsistent with a fundamental right is void to the extent of the inconsistency.
5. Who must prove a custom, and what is the commonest reason a claim of custom fails? The party asserting it, because custom is a question of fact and is not judicially noticed. Most claims fail on certainty, because the practice cannot be stated in a fixed form, or on reasonableness.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.