Custom as a source of Law in the subject Jurisprudence

Custom as a source

1. Custom as a source of Law Sunaina Mishra Assistant Professor Law Lloyd School of Law

2. Synopsis Introduction Custom meaning, definition and nature of Custom. Custom as a source of law- Land laws, Family Law, High Courts Judgements ; Theories regarding Transformation of Custom into law. Historical theory, Analytical theory, Criticism against these theories Essential of a valid Custom

3. Meaning Positivist: Sovereign or the State who makes and enforces the laws. Historical school: origins of law Prof. Fuller, in his “Anatomy of the Law”, states that a judge interprets and applies certain rules to decide upon a case. Such rules are obtained from various places which are known as “sources”. Holland has defined the term to mean the sources of the knowledge regarding law.

4. Austin’s Clasification

5. Keeton’s Classification

6. Salmond’s Classification

7. Sources of Indian Law

8. Custom The word ‘custom’ is derived from an old French word ‘Costume’. Some says that the word ‘custom’ is based on Latin word ‘ Consuetudo ’. In Hindi the word ‘custom’ means ‘ reeti ’,‘ vyavahar ’,‘ rasm ’, or ‘ riwaj ’.Custom enjoys a very important place in every legal system .

9. According to Allen – ‘custom as the uniformity of habits or conduct of the people under like circumstances’ Salmond: -custom as those principles that are acknowledged and approved not by the power of the state, but by public opinion of the society at large. Holland: - He defined custom as “a generally observed course of conduct.”

10. ”. Halsbury: - custom is some kind of special rule which is in actual existence and possible followed from time immemorial and which has acquired the force of law in a specified territory, although it may be contrary to or inconsistent with the general law of the land.

11. Harprasad v. Shivdayal :- In this case the judicial committee of the Privy Council observed, custom as a rule which in a particular family or in a particular district or in a particular sect, class or tribe, has from long usage obtained the force of a law Austin: - According to Austin, “custom is a rule of conduct which the governed observe spontaneously and not in a pursuance of law set by a political superior it may be contrary to or inconsistent with the general law of the land.

12. THEORIES REGARDING TRANSFORMATION OF CUSTOM INTO LAW Analytical Theory Historical Theory

13. Analytical Theory According to Austin, nothing is entitled to the name ‘Law’ which does not possess all the attributes of state-created and state-enforced law and so, on this approach, logically, one shall have to say that customary law is not law at all, or that it is 'imperfect' or 'inchoate' law.

14. Austin: Custom is not law in itself, but it is a source of law. If a custom is not recognized by the legislation and approved by the judiciary, it will not become a law. Gray: true view is that the law is what the judges declare. The legislation, precedents, customs and morality are all sources of law.

15. Holland: customs are not laws when they arise but they are largely adopted into laws by State recognition. A custom is a law only to the extent to which, and from the time, when the sovereign sanctions it.

16. Criticism Allen: “Customs grow by conduct and it is therefore, a mistake to measure its validity solely by the element or express sanction accorded by courts of law or by other determinate authority”

17. Historical Theory The Historical Jurists attached a much greater importance to custom. They held that all early law was customary, and that the function of legislation is limited to supplementing and redefining custom e.g. Panchayati raj system of administration in India. According to Savigny , the real bases of all positive law is to be found in the general consciousness of people ( Volksgeist ).

18. According to this theory, the growth of law does not depend upon the arbitrary will of any individual . Custom is derived from the common consciousness of the people. It springs from an inner sense of right. Law has its existence in the general will of the people.

19. Crticism Paton: “The growth of most of the customs is not result of any conscious thought but of tentative practice”

20. Custom and Law in India Constitution of India: Article 13 Laws inconsistent with or in derogation of the fundamental rights. (3) ( a ) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law ; Article 371A(1)(ii) Naga customary law and procedure, ( iii ) administration of civil and criminal justice involving decisions according to Naga customary law , Article 371G( a ) ( ii ) Mizo customary law and procedure, ( iii ) administration of civil and criminal justice involving decisions according to Mizo customary law ,

21. Section 3 Hindu Marriage Act, 1955 T he 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;

22. Section 7 Hindu Marriage Act, 1955 Ceremonies for a Hindu marriage.—(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the Saptapadi (that is, 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.

23. Classification of custom

24. Essential of a valid custom

25. I. Antiquity Beyond Human Memory, must not be of recent origin. According to Blackstone, “A custom in order that it may be legal and binding, must have been used as long that the memory of man runneth not to the contrary In England a custom must be of reign ofRichard I King of England”. That is in England the time of legal memory is 1189 for a custom to be regarded as valid . Ambalika Dasi v. AparnaDasiwas of the view that either 1773 A.D. or 1793 A.D. is the date for treating a custom which has been in existence as immemorial.

26. the definition of custom adopted by the Hindu Marriage Act says 'for a long period' instead of 'immemorial', which denotes that the English rule has not been adopted, but as 'long period' has not been defined, uncertainty as to what that is continues in the views of the various High Courts.

27. n Ambalika Dasi v. AparnaDasiwas of the view that either 1773 A.D. or 1793 A.D . The Bombay High Court was of the view that if within last 20years, instances have occurred in which an alleged custom has been recognized, the presumption is that it is of immemorial origin. 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 Englishlaw .

28. II. Reasonableness That is the burden of proof lies upon the person who challenges the custom. Sir Edward Coke pointed out that a custom is contrary to reason if it is opposed to the principles of justice, equity and good conscience. Salmond has rightly suggested that before a custom is denied legal recognition, it must be found out that the mischief resulting from its enforcement outweighs the harm that would result from the multiplication of the natural expectation of the people

29. Morality A custom must not be opposed to public plicyor justice, equity or good conscience In case of Balusami v. BalaKishna , the custom permitting marriage with daughter’s daughter has also been held immoral.

30. IV. Continuance No interruption Muhammad Hussainforki v. Syed Mian Saheb,it was held that unless there is continuity there is no custom. Blackstone has drawn a distinction between the interruption of the “right” and the interruption of the mere ‘possession”. It is the discontinuance of the ‘right’, for howsoever small a time that ends the custom

31. V. Peaceable Enjoyment The next important test is that custom must have been enjoyed peaceably. The presumption that a custom began by consent, as most customs do, will be disproved if it has been questioned in a court of law for a long time

32. VI. CONSISTENCY It should not be contrary to the statutory law

33. VII. Certainity Certainty is an indispensable condition of a valid custom. A custom, however, ancient must not be indefinite and uncertain . The court must be satisfied by a clear proof that custom exists as a matter of fact, or as a legal presumption of fact. In one case, the plaintiff claimed a customary right of easement for the shadow falling from the branches of trees hanging from the neighbour’s field

34. VIII. Compulsory observance It must be regarded by those affected by it not merely as an optional rule but as an obligatory or binding rule of conduct

35. IX. Juridical Nature A custom must be of a juridical nature. A custom must refer to legal relations. A mere voluntary practice not conceived of as being based on any rule of right or obligation does not amount to a legal custom.

36. X. Public Policy A custom should not be immoral or opposed to public policy or against justice, equity and good sense. There is no fixed test to judge the morality or otherwise of a custom. In Mathura Naikin v. Esu Naikin [(1880) ILR 4 Bom , 545], the Court held the custom to be immoral, for the profession of dancing girls was immoral, and adoption by them of girls was designed to perpetuate this profession.