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Sources of Law
QUESTION BANK
Q.1 State the essentials of a valid custom.
Q.2 What do you understand by custom? What are the essential requisite of a valid custom?
Q.3 “What custom is to society law is to State”, comment.
I. Introduction-
In all societies of the world, customs have enjoyed a very high place in the regulation of human conduct. Law based on custom is known as ‘customary law’. In fact, the custom is a very fruitful source of law. It is the oldest source of law.
Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned. When society finds any act to be good, beneficial, and agreeable, it practices it. Over time, through frequent interaction and its approval and acceptance by the community for generations, a practice becomes custom. Imitation plays a considerable part in the origin of a custom.
Customs played a very important part in ancient Hindu law. The common law of England is customary law. Mohammedan law also custom played an important role; however, only those customs which were approved by the Prophet were treated as good law.
II. Definition of Custom-
1) According to Austin-
“Custom is a rule of conduct[1] which the governed observe spontaneously and not in pursuance of law settled by the political superior.”[2].
2) According to the Privy Council-
“A custom is a rule which in a particular family or in a particular district or in a particular class, sect or tribe, has from long usage obtains the force of law”.
3) According to Allen-
“Custom may be defined as the uniformity of habits or conduct of people under like circumstances”.
4) According to Holland-
“Custom is a generally observed course of conduct”.
In short, custom means uniformity in the conduct and habits of people. Custom is very useful in two ways; firstly, it provides ready material from which the law can be made out. Secondly, customs that are followed for a long time are safe to be enacted into law. Customs were the sole source of law in ancient times. However, in present times, the importance of customs has been reduced considerably by the judicial and law-making processes. Customs to be enacted into law must be good customs. In India, a number of evil customs like untouchability, dowry, sati, child marriage, etc., were followed for ages.
III. Essentials of valid custom-
There are the following requirements of valid custom, viz-
1. Reasonableness[3]–
Customs must be reasonable because the court cannot enforce unreasonable customs. To be valid, custom should not be unreasonable. It should not be against reason. A custom shall not be valid if it is repugnant to the right reason and is likely to make more mischief than good if enforced. Custom is contrary to reason if it is opposed to the principles of justice, equity, and good conscience, e.g., the custom of untouchability, the custom of sati, child marriage, and the custom of dowry etc.
2. Consistency[4]–
A custom must be valid if it is in conformity with statute law. In other words, it should not be contrary to an act of parliament. A custom should necessarily yield where it conflicts with statutory law.
3, Compulsory observance-
A custom to be legally recognised as a valid custom must be observed as of right. It means all concerned must have followed customs without recourse to force and permission of those adversely affected by it. It must be regarded by those affected by it. Customs should not merely be optional but an obligatory or binding rule of conduct.
4. Certainty-
To prove the existence of a custom since time immemorial, it must be shown that it is being observed continuously and uninterruptedly with certainty.
5. Continuance-
Another essential of a custom is that it must have been practised continuously since time immemorial. Such custom must have been continuously observed without any interruption or break. In other words, one custom should not be in conflict with another custom.
6. Peaceable enjoyment-
Suppose a custom is in dispute for a long time in a law court or otherwise. In that case, it negates the presumption that it originated by consent as most of the customs naturally might have originated. In other words, peaceable enjoyment is an essential ingredient of custom.
7. Immemorial antiquity[5]–
For a custom to have the force of law, it must be immemorial. In other words, the origin of a custom should be beyond the stretch of memory. According to Blackstone, if anyone can show the beginning of a custom, it is not a good custom. In England, the limit of ‘legal memory’ was fixed in 1189 A.D.
However, the custom of getting legal force in India need not be of immemorial antiquity. In Subhani V. Nawab,[6] it is observed that “to be valid custom must be ancient, but it is not the essence that its antiquity must in every case be carried back to a period beyond the memory of man”.
IV. Types of Customs-
Broadly speaking, customs may be divided into (i) Customs without sanction (i.e. without legal force). These customs are observed due to pressure of public opinion or the will of the observer; therefore, they are called rules of ‘positive morality and (ii) Customs having sanction (i.e. legal force). However, we are concerned in this topic with the customs having sanctions. These customs having sanctions may further be divided into (i) Legal Customs and (ii) Conventional Customs.
(1) Legal Customs[7]–
‘Legal customs’ are binding rules of law. They are recognised by the State and are part of the law of the land. They are enforceable by the court.
Legal customs are further divided into two classes, viz-
(i) General Customs-
General customs are those customs that prevail throughout the territory of the state.
All the members of society generally observe them. Such general legal customs, therefore, are part of the law of the land.
(ii) Local Customs-
A custom that prevails in a defined locality only, i.e., a particular district or town, observed by a particular sect or family, is called ‘local custom’. In its narrowest sense, ‘ custom’ means ‘local custom’.
(2) Conventional Customs[8]–
Conventional custom is also called ‘usage[9]’. Usage is an established practice. However, its authority is conditional on its acceptance and incorporation in the agreement. It is binding if accepted or incorporated expressly or impliedly in an agreement. When two parties enter into a contract, all terms are not generally set out in expressways; a large part of those terms are implied. Such implied intention can be gathered from the customary law prevalent in the trading community.
Like legal customs, conventional customs are limited to a place in a particular locality or market or trade or transactions of a particular nature.
The distinction between ‘custom’ and ‘usage’-
(i) Consent-
A custom is binding irrespective of the parties’ consent, whereas ‘usages’ are binding if not expressly excluded in the agreement.
(ii) Time immemorial-
Customs are valid from time immemorial. However, users need not be immemorial in time.
(iii) Exclusion-
The parties cannot exclude custom, whereas applicability of usage can be excluded in agreement by the parties.
(iv) Overriding effect-
Customs can override the common law, but usage can do so only to a limited extent.
Conclusion-
In conclusion, we may say custom played a very important role in ancient times in Hindu and Mohammedan law as well as in English law. English law is, by and large, the development of customary law; the importance of custom is diluting day by day due to judicial precedent and legislation.
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[1] वर्तणूक [व्यवहार ]
[2] प्रथा म्हणजे वर्तणुकीचे नियम कि ज्यायोगे षासीत लोक स्वयंप्ररणेने, ना की राजकीच वरीश्ठांनी बनविलेल्या कायदयाप्रमाने त्याचे पालन करतात. [एक रिवाज एक आचार संहिता है जिसके द्वारा शासित राजनीतिक वरिष्ठों द्वारा बनाए गए नियमों के एक समूह के बजाय सहज रूप से पालन करते हैं। ]
[3] रास्त वाजवी [काफी उचित ]
[4] सातत्य [निरंतरता ]
[5] अतिप्राचीन [बहुत प्राचीन ]
[6] ILR (1941) Lah. 154 (PC)
[7] स्थानिाक रूढी [लोकल कस्टम ]
[8] व्यवसायीक रूढी / परंपरा [व्यापार प्रथाओं / परंपराओं ]
[9] व्यवसाइक प्रथा / रिवाज [व्यवसाय प्रथाओं / रीति-रिवाजों ]